[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3934]


[[Page Unknown]]

[Federal Register: February 25, 1994]


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Part II





Department of the Interior





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Bureau of Indian Affairs



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25 CFR Part 83




Procedures for Establishing That an American Indian Group Exists as an 
Indian Tribe; Final Rule
DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 83

RIN 1076-AC46

 
Procedures for Establishing That an American Indian Group Exists 
as an Indian Tribe

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: This rule makes substantial changes in the administrative 
process for Federal acknowledgment of Indian groups as tribes entitled 
to a government-to-government relationship with the United States. 
Changes are made to clarify requirements for acknowledgment and define 
more clearly standards of evidence. Provision is made for a reduced 
burden of proof for petitioners demonstrating previous Federal 
acknowledgment. Procedural improvements include an independent review 
of decisions, revised timeframes for actions, definition of access to 
records, and opportunity for a formal hearing on proposed findings. 
These changes will improve the quality of materials submitted by 
petitioners, as well as reduce the work required to develop petitions. 
They are also intended to provide a faster and improved process of 
evaluation.

EFFECTIVE DATE: March 28, 1994.

FOR FURTHER INFORMATION CONTACT: Holly Reckord, Chief, Branch of 
Acknowledgment and Research, Bureau of Indian Affairs, MS 2611-MIB, 
1849 C Street NW., Washington, DC 20240.

SUPPLEMENTARY INFORMATION:

I. Background

    This final revised rule is published in the exercise of authority 
delegated by the Secretary of the Interior to the Assistant Secretary--
Indian Affairs by 209 DM 8.
    Regulations governing the administrative process for Federal 
acknowledgment first became effective October 2, 1978. Initially 
designated as 25 CFR part 54, they were later redesignated without 
change as 25 CFR part 83. Prior to 1978, Federal acknowledgment was 
accomplished both by Congressional action and by various forms of 
administrative decision. However, there still remained in the 1970's 
many acknowledgment claimants whose character and history varied 
widely. The regulations established the first detailed, systematic 
process for review of petitions from groups seeking Federal 
acknowledgment.
    Proposed revised regulations were published on September 18, 1991, 
at 56 FR 47320. These were published in response to issues raised by 
diverse parties concerning interpretation of the regulations and 
administration of the review process. The proposed revised regulations 
also incorporated changes based on the perspective that had been gained 
by the Department from 13 years of experience administrating the 
acknowledgment process.
    The public comment period of 90 days was extended for an additional 
30 days, until January 17, 1992. Public meetings were held at nine 
locations around the country. Sixty-one written comments were received 
from 59 different individuals. These individuals included 
representatives of unrecognized groups, recognized tribes, Indian legal 
rights organizations, State governments, and Federal agencies, as well 
as individual attorneys, anthropologists, and other scholars. The 
issues and concerns raised by commenters are summarized below, followed 
by the Department's response and a description of changes made in 
response to comments.

II. Review of Public Comments

Overview

    These final regulations include changes which make clearer the 
meaning of the criteria for acknowledgment and make more explicit the 
kinds of evidence which may be used to meet the criteria. The general 
standards for interpreting evidence set out in these regulations are 
the same as were used to evaluate petitions under the previous 
regulations. In some circumstances, the burden of evidence to be 
provided is reduced, but the standards of continuity of tribal 
existence that a petitioner must meet remain unchanged.
    None of the changes made in these final regulations will result in 
the acknowledgment of petitioners which would not have been 
acknowledged under the previously effective acknowledgment regulations. 
Neither will the changes result in the denial of petitioners which 
would have been acknowledged under the previous regulations.

Standards of Evidence and Stringency of Requirements

    Comments: Several commenters stated that the proposed revisions 
represented a major escalation of requirements and/or that they 
codified de facto escalations of requirements that had occurred in the 
Department's application of the regulations in the 13 years since they 
became effective in October 1978. Several other commenters stressed the 
importance of maintaining the present standards and the necessity of 
stringent standards for Federal acknowledgment.
    Response: The Department does not agree that the standards of 
evidence have escalated at any time, nor that the proposed revisions 
have increased the requirements. The acknowledgment criteria and 
definitions were modified on the basis of 13 years experience dealing 
with a wide variety of cases. Changes were made to clarify the meaning 
of the criteria and intent of the regulations, and make possible 
efficient development of evidence specifically focused on the 
requirements.
    Comments: A number of commenters requested a specific statement of 
the general burden of evidence. Most suggested demonstration by a 
``preponderance'' of evidence or that a criterion be considered met if 
it were more likely true than not.
    Response: These comments are based on the incorrect assumption that 
the acknowledgment process presently requires proof beyond a doubt. The 
process only requires evidence providing a reasonable basis for 
demonstrating that a criterion is met or that a particular fact has 
been established. ``Preponderance'' is a legal standard focused on 
weighing evidence for versus against a position. It is not appropriate 
for the present circumstances where the primary question is usually 
whether the level of evidence is high enough, even in the absence of 
negative evidence, to demonstrate meeting a criterion, for example, 
showing that political authority has been exercised. In many cases, 
evidence is too fragmentary to reach a conclusion or is absent 
entirely. In response to these comments, language has been added to 
Sec. 83.6 codifying current practices by stating that facts are 
considered established if the available evidence demonstrates a 
reasonable likelihood of their validity. The section further indicates 
that a criterion is not met if the available evidence is too limited to 
establish it, even if there is no evidence contradicting facts asserted 
by the petitioner.
    Further, because the above standard is so general, additional 
language has been added in Sec. 83.6 and Sec. 83.7 to clarify the 
standard of proof as it relates to particular circumstances or 
criteria. In particular, many commenters interpreted the revised 
regulations as requiring a group to demonstrate that it meets the 
criteria in historical times by using the same kinds of evidence as for 
the present. In fact, actual acknowledgment decisions to date have 
clearly recognized the limitations of the historical record and have 
utilized standard scholarly requirements for determining the nature of 
societies in the past. It has been the Department's experience that 
claimed ``gaps'' in the historical record often represent deficiencies 
in the petitioner's research even in easily accessible records.
    Language has also been added to Sec. 83.6 which explicitly takes 
into account the inherent limitations of historical research on 
community and political influence. Further, the section allows for 
circumstances where evidence is genuinely not available, as opposed to 
being available but not developed by appropriate research. This does 
not mean, however, that a group can be acknowledged where continuous 
existence cannot be reasonably demonstrated, nor where an extant 
historical record does not record its presence.
    Comment: Extensive comment was received concerning the requirement 
to demonstrate continuous existence as a tribe since first sustained 
contact. Comments were divided concerning interpretation and/or 
modification of the definition of ``continuous.'' Some expressed the 
opinion that a stated period of years should be defined as a 
permissible ``interval'' during which a group could be presumed to have 
continued to exist. A petitioner would only have to demonstrate its 
existence before and after the interval. Intervals as long as 50 years 
were suggested. The suggestion to establish criteria for ``intervals'' 
is based on the language ``generation to generation'' which appeared in 
the original definition of ``continuous.'' Other commenters felt that 
the ``generation to generation'' language was vague and inappropriate 
and should be eliminated in favor of a more careful, technical 
explanation of the standards required to demonstrate continuity of 
existence.
    It was also suggested that no demonstration of continuity be 
required if a group is presently a tribe and can show ancestry from a 
historic tribe. A variant of this was a suggestion that petitioners 
only be required to demonstrate continuity since 1934. This date was 
suggested because it was the period of initial implementation of the 
1934 Indian Reorganization Act.
    Response: Language has been added to the regulations to make 
explicit the existing standard that criteria (b) and (c) do not have to 
be documented at every point in time. The phrase ``generation to 
generation'' has been removed from the definition of continuous. The 
additional language added to Sec. 83.6 concerning standards of evidence 
clarifies the requirements for demonstrating historical existence. 
However, in the Department's view it is inappropriate to establish a 
specific interval during which tribal existence may be presumed. The 
significance of an interval must be considered in light of the 
character of the group, its history, and the nature of the available 
historical evidence. It has been the Department's experience that 
historical evidence of tribal existence is often not available in 
clear, unambiguous packets relating to particular points in time. More 
often, demonstration of historical existence requires piecing together 
various bits of information of differing importance, each relating to a 
different historical date.
    The purpose of the acknowledgment process is to acknowledge that a 
government-to-government relationship exists between the United States 
and tribes which have existed since first contact with non-Indians. 
Acknowledgment as a historic tribe requires a demonstration of 
continuous tribal existence. A demonstration of tribal existence only 
since 1934 would provide no basis to assume continuous existence before 
that time. Further, the studies of unrecognized groups made by the 
Government in the 1930's were often quite limited and inaccurate. 
Groups known now to have existed as tribes then, were portrayed as not 
maintaining communities or political leadership, or had their Indian 
ancestry questioned. Thus, as a practical matter, 1934 would not be a 
useful starting point.
    Comment: In the proposed revised regulations, the definition of 
``continuity'' was revised to require that ``substantially'' rather 
than ``essentially'' continuous existence be demonstrated. Some 
commenters interpreted this as an escalation of requirements.
    Response: The change in wording is a reduction in the stated 
requirements to demonstrate tribal existence. The modification in 
wording reflects how the previous regulations had always been applied. 
``Essentially'' means that there can be almost no interruptions. 
``Substantially'' continuous is a lesser requirement which means only 
that overall continuity has been maintained, even though there may be 
interruptions or periods where evidence is absent or limited.
    Comment: The language in Sec. 83.6(d) concerning fluctuations in 
tribal activity drew a number of comments. Some commenters approved of 
it, some objected to it, and others requested that it be clarified. 
Commenters were uncertain about how the language was to be applied to 
the criteria. Some objected to the use of the qualifier ``sole'' in the 
phrase describing fluctuation as a cause of denial. They felt that 
using fluctuation as a cause for denial was inappropriate.
    Response: The language regarding fluctuations in activity appears 
in the present regulations in Sec. 83.7(a). It was moved to Sec. 83.6, 
the section dealing with general provisions, to make clear that it 
applied to all the criteria. It is now placed together with the new 
language concerning historical continuity, and should be read together 
with the new language.
    The language concerning fluctuations recognizes that acknowledgment 
determinations should take into account that the level of tribal 
activity may decrease temporarily for various reasons such as a change 
in leadership or a loss of land or resources. These real historical 
fluctuations are different from variations in documentation that result 
from an incomplete historical record. To clarify the meaning, the 
qualifier ``sole'' has been omitted and the sentence rewritten to state 
that fluctuations will not in themselves be the cause of denial.
    Comments: Commenters stated that the proposed revisions of the 
regulations were inadequate because they did not make clear what 
evidence was required to meet the criteria in Sec. 83.7 (b) and (c). 
Some commenters requested a more explicit specification of the evidence 
needed to meet these criteria in order to clarify the petitioner's 
burden of proof. One commenter proposed a streamlined approach using 
simplified and quantified standards. This individual felt that current 
approaches were subjective and overly complicated and that they dealt 
with extraneous issues.
    Response: To clarify the kinds of evidence needed to demonstrate 
the criteria at Sec. 83.7 (b) and (c), the revised regulations now 
include a list of evidence that can be used to meet each criterion. To 
further simplify and streamline the processes of developing and 
reviewing petitions, new language sets forth specific kinds of evidence 
considered sufficient in themselves to demonstrate that the criterion 
has been met. For example, the revised regulations provide that a high 
percentage of residence in a geographical area exclusively or almost 
exclusively occupied by group members is sufficient to demonstrate 
community. The additions to criteria (b) and (c) are discussed further 
below, with the review of comments about specific criteria. The 
existing regulations already contained lists of specific evidence for 
criteria (a) and (e), and these are carried over into the revised rule. 
These changes will provide a more focused and efficient process of 
preparation and evaluation of petitions, particularly for strong, 
clear-cut cases.
    A new paragraph, 83.6(g), has been added to the section on general 
provisions which specifies that these lists of specific evidence are 
not mandatory requirements or ``tests'' that a petitioner must meet. 
Rather, they are explicit statements of evidence that may be used to 
demonstrate that a criterion has been met. As in past cases, other 
kinds of evidence may be used to meet various criteria. The revised and 
expanded guidelines will further help petitioners develop their 
evidence by explicating the meaning of the criteria as well as 
approaches to demonstrating that a criterion is met.

Previous Federal Acknowledgment

    Comments: Extensive comment was received on the proposed provision 
allowing petitioners that were federally acknowledged previously to 
demonstrate only that they meet the criteria from the point of previous 
acknowledgment until the present. Many commenters favored this 
provision because they viewed it as remedying a lack in the present 
regulations and restoring a policy in effect before the present 
regulations were published in 1978. No commenters objected to taking 
previous acknowledgment into account.
    The strongest objections came from those holding the view that if a 
group was acknowledged previously it should be recognized now, without 
further requirements. These commenters felt that such a group should be 
acknowledged automatically unless the Government could demonstrate that 
the group had abandoned tribal relations voluntarily.
    A variant of this approach was the suggestion that a petitioner 
only be required to show that it was the same as the group acknowledged 
previously. This could be done either by demonstrating genealogical 
descent or by showing that the present group constitutes a tribe under 
the regulations and that its members are genealogically descended from 
the tribe acknowledged historically.
    Response: The Department's position is, and has always been, that 
the essential requirement for acknowledgment is continuity of tribal 
existence rather than previous acknowledgment. The Federal court in 
United States v. Washington, rejected the argument that ``because their 
ancestors belonged to treaty tribes, the appellants benefitted from a 
presumption of continuing existence.'' The court further defined as a 
single, necessary and sufficient condition for the exercise of treaty 
rights, that tribes must have functioned since treaty times as 
``continuous separate, distinct Indian cultural or political 
communities''(641 F.2d 1374 (9th Circuit 1981)). Thus, simple 
demonstration of ancestry is not sufficient.
    Petitioning groups may be recently formed associations of 
individuals who have common tribal ancestry but whose families have not 
been associated with the tribe or each other for many generations.
    The Department cannot accord acknowledgment to petitioners claiming 
previous acknowledgment without a showing that the group is the same as 
one recognized in the past. Several previous petitioners claimed they 
were a historical tribe for which previous Federal acknowledgment could 
be demonstrated. However, it was later found that their members had no 
genealogical connection with the claimed tribe. In addition the present 
group did not connect with the previously acknowledged tribe through 
the continuous historical existence of a distinct community and 
political leadership.
    The provisions concerning previously acknowledged tribes have been 
further revised and set forth in a new, separate section of the 
regulations. The changes reduce the burden of evidence for previously 
acknowledged tribes to demonstrate continued tribal existence. The 
revisions, however, still maintain the same requirements regarding the 
character of the petitioner. For petitioners which were genuinely 
acknowledged previously as tribes, the revisions recognize that 
evidence concerning their continued existence may be entitled to 
greater weight. Such groups, therefore, require only a streamlined 
demonstration of criterion (c). Although these changes have been made, 
the revisions maintain the essential requirement that to be 
acknowledged a petitioner must be tribal in character and demonstrate 
historic continuity of tribal existence. Thus, petitioners that were 
not recognized under the previous regulations would not be recognized 
by these revised regulations.
    The revised language requires the previously acknowledged 
petitioner as it exists today to meet the criteria for community 
(criterion 83.7(b) and political influence (criterion 83.7(c)). The 
demonstration of historical continuity of tribal existence, since last 
Federal acknowledgment until the present, must meet three requirements. 
First, the petitioner must demonstrate that it has been continuously 
identified by external sources as the same tribe as the tribe 
recognized previously. Second, continuity of political influence must 
be established by showing identification of leaders and/or a governing 
body exercising political influence on a substantially continuous basis 
from last acknowledgment until the present, if supported by 
demonstration of one form of evidence listed in Sec. 83.7(c). 
Demonstration of historical community would not be required. Thus, the 
evidence required is less burdensome. Alternatively, if these 
requirements cannot be met, petitioner may demonstrate that it meets 
the requirements of criteria 83.7(a)-(c) from last Federal 
acknowledgment until the present. Third, ancestry from the historic 
tribe (criterion 83.7(e)) must be shown. The requirements of criterion 
(g), that the petitioner not be subject to legislation terminating or 
forbidding the Federal relationship will still apply. Criterion (f), 
which requires that the petitioner's members not be members of a 
presently recognized tribe, will also still apply.
    Comments: Several commenters raised the practical question of when 
and how it would be demonstrated that the petitioner was in fact the 
same as the previously acknowledged tribe.
    Response: The determination under paragraphs 83.10(b)(3) and 
83.10(c)(2) that a group was previously acknowledged will only be a 
determination that past government actions constituted unambiguous 
Federal acknowledgement as a tribe. It will not be a determination that 
the criteria for acknowledgment have been met by the petitioning entity 
since the last point in time that the tribe it claims to have evolved 
from was acknowledged. If during the preliminary technical assistance 
review it becomes apparent that the petitioner cannot be linked with 
the previously acknowledged tribe, the petitioner will be advised. 
Further explanation of this procedure will be provided in the revised 
guidelines.
    Language has been added to Sec. 83.10(c) to provide for 
circumstances where a petitioner's response to the questions raised 
during the technical assistance review are not adequate to establish 
unambiguous previous Federal acknowledgment.
    Comments: Many commenters felt that the definition of the term 
``unambiguous previous federal acknowledgment'' was unclear. They 
requested a statement of the specific evidence necessary to demonstrate 
Federal acknowledgment.
    Response: Section 83.8(c) now lists three forms of evidence for 
unambiguous previous Federal acknowledgment. These are derived from the 
``Cohen criteria'' used by the Department to recognize tribes between 
the mid-1930's and 1978. The section further provides that unambiguous 
previous acknowledgment may be demonstrated by other kinds of Federal 
action. The guidelines provided for under Sec. 83.5(b) will include 
further examples and explanations of how this provision will be 
applied.
    Comments: Several commenters felt that the regulations did not make 
clear whether tribal existence would have to be demonstrated from the 
earliest or from the latest date of Federal acknowledgment clearly 
identified in records. Thus, for example, a petitioner's last point of 
Federal acknowledgment might be when under the terms of a treaty, 
services were withdrawn, even though that might have been several 
decades after the treaty was signed.
    Response: The language in Sec. 83.8(d) has been modified to 
indicate that tribal existence need only be demonstrated from the 
latest date of Federal acknowledgment.
    Comment: One commenter was concerned that the regulations might 
allow the isolated actions of individual Federal officials not 
authorized to extend acknowledgment to be interpreted as previous 
acknowledgment.
    Response: Since the regulations require that previous 
acknowledgment be unambiguous and clearly premised on acknowledgment of 
a government-to-government relationship with the United States, no 
change in the definition is necessary. The definition does not apply to 
circumstances where services may have been provided to individual 
Indians, but the services were not based on their membership in a 
recognized tribe. Providing individual services in this way was common 
earlier in this century.

Interested Parties

    Comments: A definition of ``interested party'' was added to the 
proposed revised regulations. Language concerning notification and 
participation of interested parties was added to and/or clarified in 
Sec. 83.9, Notification, Sec. 83.10, Processing of the documented 
petition, and Sec. 83.11, Independent review, reconsideration and final 
action (sections renumbered). Some commenters approved of these 
changes. Yet, numerous others strongly objected to third parties having 
an opportunity to participate in and comment on acknowledgment 
petitions. Particular concern was expressed that interested parties 
might be able to delay the effective date of an acknowledgment 
determination without sufficient reason. Several commenters were 
concerned that third party information might be considered in advance 
of consideration of a petition. Conversely, several commenters wanted 
language to insure that recognized tribes affected potentially by a 
petition be notified and have an opportunity to comment.
    Response: Interested parties participate fully in the 
acknowledgment process under the present regulations. None of the 
changes made in the proposed revised regulations reflected an increase 
in their role. It is neither necessary nor appropriate, in the 
Department's view, to prohibit the participation of third parties. In 
particular, the Department's position is that parties which may have a 
legal or property interest in a decision, such as recognized tribes or 
non-Indian governmental units, must be allowed to participate. Other 
parties, such as scholars with a knowledge of the history of a 
petitioning group, often are able to contribute valuable information 
not otherwise available. It has been our experience that this material 
is most often favorable to petitioners. Thus, participation of such 
interested parties is both appropriate and useful.
    The Department agrees that third parties without a significant 
property or legal interest in a determination should not be permitted 
to participate without limit. Therefore, the definition of interested 
party has been revised to refer to third parties with a significant 
property or legal interest. A separate phrase informed party, has been 
defined in Sec. 83.1 to refer to all other third parties. Language 
throughout the regulations has been revised to reflect this 
distinction. The revised and additional definitions should be read 
together with the language of Sec. 83.11, on reconsideration, and the 
new language in paragraph 83.10(i) concerning a formal meeting after a 
proposed finding to review the bases of the determination. These 
revisions limit to petitioners and interested parties the right to 
initiate requests for a formal meeting or for reconsideration. The 
Assistant Secretary and the Interior Board of Indian Appeals (IBIA), 
respectively, will determine which third parties qualify as interested 
parties in the formal meeting and the process for review of requests 
for reconsideration.
    Language has been added to Sec. 83.9(b) to provide that recognized 
tribes and petitioners that can be identified as being affected by or 
having a possible interest in a petition determination will be notified 
of the opportunity to comment. Such tribes and petitioners will be 
considered interested parties.
    A requirement that third parties who comment on a proposed finding 
or a final determination must provide copies of their comments to the 
petitioner as well as to the Department was already included in the 
proposed revised regulations (Sec. 83.10(i) and Sec. 83.11(b) as 
renumbered here). In order to extend notification requirements to all 
stages of the process, language has been added to Sec. 83.10(f) 
requiring the Department to notify petitioners of comments received 
from third parties before active consideration begins. Information 
received from third parties will not be considered by the Department 
until a petition is placed under active consideration.

Section-by-Section Review

    Introduction: Comments relating to specific sections, not already 
discussed in connection with the general issues reviewed above, are 
reviewed below on a section-by-section basis. Because a new section, 
83.8, has been added, previous sections 83.8-12 have been renumbered as 
Sec. 83.9-13.
    Throughout the body of the regulations, minor changes have been 
made in the text. These are solely for the purposes of clarity and ease 
of reading and have no intended change in meaning. All revisions which 
are intended to change the acknowledgment process have been separately 
noted.

Section 83.1  Definitions

    Introduction: Comments on many of the most important definitions 
have been incorporated with the criteria with which they are 
associated. These comments are discussed below in Sec. 83.7. Comments 
on other definitions are reviewed here.

Continental United States

    Comment: A definition of continental United States was added to the 
proposed revised regulations to make it clear that the regulations 
apply to Alaska. The preamble to the proposed revised regulations 
further stated that the Bureau would consider whether it was 
appropriate to develop a modified acknowledgment process to apply to 
Alaska organizations wishing to be included on the Federal Register 
list of recognized tribes. One commenter strongly supported the 
establishment of a modified acknowledgment process for Alaska.
    Response: Many Federal statutes passed since the Alaska Native 
Claims Settlement Act (ANCSA) (43 U.S.C. 1601 et seq.) have defined 
Indian ``tribe'' to include the corporations established pursuant to 
ANCSA. Thus, the Federal Register list of tribes recognized and 
eligible for services was expanded to include ANCSA corporate entities 
(see 53 FR 52829, at 52832, December 29, 1988). The ANCSA corporations, 
while eligible for services as though they were ``tribes'' because 
Congress expressly included them in the statutory definition of 
``tribes,'' are not tribes in the historical or political sense.
    The inclusion of non-tribal entities on the 1988 Alaska entities 
list departed from the intent of 25 CFR 83.6(b) and created a 
discontinuity from the list of tribal entities in the contiguous 48 
states. On October 21, 1993, a Notice identifying tribal entities in 
Alaska as well as the contiguous 48 states was published in the Federal 
Register (58 FR 54364) to clarify that the villages and regional tribes 
are not simply eligible for services, or recognized as tribes for 
certain narrow purposes. Rather, the Alaska villages have the same 
governmental status as other federally acknowledged tribes by virtue of 
their status as Indian tribes with a government-to-government 
relationship with the United States; are entitled to the same 
protection, immunities, and privileges as other acknowledged tribes; 
have the right, subject to general principles of Federal Indian law, to 
exercise the same inherent and delegated authorities available to other 
tribes; and are subject to the same limitations imposed by law on other 
tribes.1 The publication of the new tribal entities list resolves 
the primary questions relating to Alaska which led to the consideration 
of adopting a possible modified acknowledgment process for Alaska (see 
56 FR 47320, at 47321, September 18, 1991). Accordingly, a modification 
now of the acknowledgment process to address the special circumstances 
in Alaska is unwarranted.
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    \1\Sol. Op. M-36,975 concluded, construing general principles of 
Federal Indian law and ANCSA, that ``notwithstanding the potential 
that Indian country still exists in Alaska in certain limited cases, 
Congress has left little or no room for tribes in Alaska to exercise 
governmental authority over land or nonmembers'' M-36,975 at 108. 
That portion of the opinion is subject to review, but has not been 
withdrawn or modified.
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Continuous and Historical

    Comments: Commenters generally approved of the addition of language 
providing that petitioners need only trace continuity as a tribe back 
to the point where contact with non-Indians was sustained. This 
provision was aimed at eliminating possible problems caused by the 
often sporadic and poorly documented nature of initial contacts. 
Several commenters were concerned that the revised definition might 
lead to recognition of recently formed groups. Others felt that the 
change would eliminate Eastern groups whose early culture and 
government had been destroyed.
    Response: A separate definition of sustained contact has been 
created by restating language incorporated in the definition of 
``historical'' in the proposed revised regulations. The revised and 
added definitions concerning ``historical,'' ``continuous'' and 
``sustained contact'' reflect the current administrative practice in 
implementing the present regulations. They do not increase the burden 
of demonstrating historical continuity for Eastern groups. The 
definition would not permit recently formed groups in areas with long-
standing non-Indian settlement and/or governmental presence to claim 
historical existence as a tribe.

European

    Comment: Comments were received that European is an inappropriate 
term to describe many of the peoples that Indian societies first came 
into contact with.
    Response: The term non-Indian has been substituted for European in 
the definitions of continuous, historical and sustained contact.

Indian Group

    Revision: Because the term ``Indian'' did not clearly cover Alaskan 
groups, the term ``Alaska Native'' has been added to this definition.

Indian Tribe

    Revision: Because the term ``Indian'' did not clearly cover 
acknowledged Alaskan tribal entities, the terms Alaska Native and 
villages have been added to this definition.

Indigenous

    Revision: For clarity and consistency with portions of the 
regulations referring to sustained historical contact, this definition 
has been revised to refer to the tribe's ``territory at the time of 
sustained contact,'' rather than its ``aboriginal range.''

Tribal Roll

    Comments: One commenter objected to the requirement for ``active'' 
consent to membership while another supported it.
    Response: This definition was added in the proposed revised 
regulations to provide a specific definition of tribal roll for the 
purposes of these regulations only. The intent of the regulations is to 
acknowledge tribes that are in fact politically autonomous of other 
Indian tribes. We believe that in order to meet this intent, a tribal 
roll, which here refers to a roll made by a recognized tribe, must 
clearly reflect the existence of a bilateral political relationship 
between the individuals listed and their tribe. The definition has been 
revised, however, to require that the individual have ``affirmatively 
demonstrated'' consent rather than ``actively consented'' to 
membership. This will make it clearer that a variety of actions may 
constitute evidence that an individual's listing on a roll reflects the 
existence of a bilateral political relationship with the tribe.

Undocumented Letter Petition

    Comments: Comments indicated some continued confusion between the 
status of an undocumented letter petition and a documented petition. 
The former was defined in the proposed revised regulations as a letter 
or resolution to the Assistant Secretary-Indian Affairs indicating that 
an Indian group was requesting acknowledgment as a tribe. The latter 
was defined as containing the necessary evidence for such a request to 
be evaluated.
    Response: The term letter of intent has been substituted for 
undocumented letter petition in the definitions section and throughout 
the regulations. This change more clearly distinguishes between a group 
which has merely requested acknowledgment and one which has provided 
the evidence necessary to review such a request. Hopefully, the change 
will eliminate confusion concerning the status of groups seeking 
acknowledgment.

Section 83.3  Scope

Section 83.3(a)
    Comment: The meaning of the phrase ``ethnically identifiable'' was 
questioned. The exclusion from the proposed revised regulations of the 
phrase ``culturally identifiable'' was also questioned.
    Response: The phrase ``ethnically identifiable'' has been 
eliminated because it caused some confusion and does not contribute to 
the implementation of the regulations. ``Culturally identifiable'' was 
previously eliminated because the regulations do not require that a 
successful petitioner be culturally different from non-Indians.
Section 83.3(g)
    Comments: This section provides that petitioners under active 
consideration when revised regulations become effective may choose 
either to continue under the present regulations or come under the 
revised regulations. One commenter objected to allowing a shift if a 
proposed finding had already been issued and another objected to 
allowing any choice at all. Most of the comments concerned providing 
access to the Interior Board of Indian Appeals (IBIA) review process in 
Sec. 83.11. Commenters argued that even if the petitioner chose to be 
reviewed under the present regulations, they should have access to the 
new appeal process. It was also suggested that petitioners whose cases 
were already decided under the existing regulations be allowed access 
to the IBIA process.
    Response: The Department thinks it unlikely that the old 
regulations will be chosen by petitioners under active consideration. 
However, the comments underscored some procedural complications. Thus, 
language has been added to specify that the transition rules apply at 
any stage of active consideration, including reconsideration. Language 
has also been added to allow petitioners presently under active 
consideration to request a suspension of consideration in order to 
modify their petition. In addition, the regulations have been revised 
to allow groups choosing the original regulations to nonetheless use 
the IBIA process, since the Department's policy is presently to utilize 
the IBIA to conduct an independent review of requests for 
reconsideration.
    No provision is being made, however, to allow already completed 
decisions to be reopened, since this would constitute repetitioning. 
Repetitioning by petitioners for which a final decision has become 
effective is prohibited by Sec. 83.10(p).
    It is anticipated that groups ready for active consideration but 
not yet being considered may wish to withdraw their petitions for 
further work. Such petitions would be removed from the priority 
register established under Sec. 83.10(d).
    Comment: Two commenters requested clarification on what procedures 
would apply if a court were to vacate or otherwise return a decision 
for reconsideration.
    Response: Provisions would be made regarding what procedures should 
be followed on an individual basis depending on the specific court 
ruling. Because the court would be expected to provide guidance for 
each case of this type, no general provisions can be included in the 
regulations.

New Issues

    Comment: One commenter requested that the regulations bar 
consideration of petitioners declared by a Federal court not to exist 
as tribes, if the United States and a recognized tribe were a party to 
the decision.
    Response: It would be inappropriate to put a blanket prohibition in 
the regulations. Whether the United States is barred by past court 
decisions from acknowledging a petitioner would depend on the 
particular circumstances of a given decision. In such cases, the 
Department would undertake a legal review which would not require 
regulatory language to be effective.

Section 83.4  Filing a Letter of Intent

    Revision: Language has been added to clarify that even though in 
most instances a letter of intent will be filed first, a petitioner's 
letter of intent may be filed at the same time and as part of its 
documented petition.
    In addition, the language requiring that a letter of intent be 
signed, dated, and produced by a petitioner's governing body has been 
moved from the definition in Sec. 83.1 to this section as paragraph 
83.4(c).

Section 83.5  Duties of the Department

Section 83.5(a)
    Comments: The proposed revised regulations changed the requirement 
for publication of a list of recognized tribes in the Federal Register 
from annually to periodically, as deemed necessary. Commenters objected 
that this change made the requirement too indefinite and that regular 
publication was necessary so that other Federal agencies would clearly 
know the status of tribes.
    Response: While the Department believes annual publication is 
unnecessary, we agree that some regular schedule is appropriate. 
Consequently this section has been revised to provide for publication 
at least every three years, and more frequently if deemed necessary.
    Comments: Comments were received requesting that the Department 
specify as part of the publication of the list of recognized tribes 
that Alaska Native villages have the status of historic tribes. This 
would include both those villages on lists published under the previous 
regulations and on the lists published in the future under the current 
regulations.
    Response: As already indicated, on October 21, 1993, the Assistant 
Secretary--Indian Affairs published a Notice in the Federal Register 
(58 FR 54364) listing the recognized tribal entities in the contiguous 
48 states and Alaska and clarifying the status of Alaska Native 
villages.
    Comments: Many comments stated that the revised regulations could 
be used, or were intended to be used, to review tribes already on the 
list of recognized tribes to determine whether they should continue to 
be recognized.
    Response: This is an erroneous and unwarranted interpretation of 
the proposed revised regulations. The Department has no authority to 
use these regulations to review the status of already recognized tribes 
and no intention of doing so. Both the current and the proposed revised 
regulations declare under Sec. 83.3(b) that presently acknowledged 
tribes cannot be acknowledged under these regulations. The intent of 
this is that presently acknowledged tribes not be reviewed under the 
acknowledgment process.
Section 83.5(b)
    Comments: Comments generally approved of the issuance of revised 
guidelines, as a way to clarify the requirements for preparation and 
evaluation of petitions. Some commenters were afraid that, because of 
the provision for periodic updating, the guidelines would be used as a 
way to modify the regulations without public comment. Some comments on 
definitions wanted key terms such as ``significant'' and 
``substantial'' defined in the regulations rather than in the 
guidelines.
    Response: The purpose of the guidelines is to clarify and explain 
more precisely the kinds of evidence necessary for petitions as well as 
the administrative procedures for reviewing petitions. It is not 
possible to include in the regulations a definition of all of its terms 
or a complete exposition of all forms of possible evidence to 
demonstrate that the acknowledgment criteria have been met. The 
provision for updating guidelines reflects the desire of the Department 
to continue to improve its technical assistance to petitioners. The 
revised guidelines will allow for response to petitioner's questions 
and provide advice on cases or problems which have not been dealt with 
previously. The guidelines cannot be used to modify the regulations.
    Language has been added to clarify the nature of the guidelines, by 
stating explicitly that they will include an explanation of the meaning 
of the criteria and the types of evidence necessary to meet them.
New Provision
    Comments: Several commenters objected to the deletion of a 
provision to notify unrecognized groups of the opportunity to petition. 
It was recommended that because the proposed changes in the regulations 
are so extensive, the Department should notify petitioners and/or 
potential petitioners of the revised regulations.
    Response: A new section, 83.5(f), has been added to provide for the 
notification of petitioners when the revised regulations become 
effective. It is our view that it is not necessary to further notify 
groups which have not petitioned that the regulations have been 
modified even if they may be aware of the acknowledgment process. That 
information can be provided when a letter of intent is submitted.

Section 83.6  General Provisions for the Documented Petition

Section 83.6(a)
    Comment: Several commenters interpreted the word ``comprehensive'' 
in characterizing petitions as a requirement that all possible evidence 
be supplied.
    Response: The term ``comprehensive'' was used to mean that the 
petition should contain evidence concerning all necessary aspects of 
the regulations. Because of objections to this term, the language was 
changed to require ``detailed, specific'' evidence.
    Revision: The paragraph previously numbered 83.6(e) concerning 
previous Federal acknowledgment, has been reorganized and augmented and 
now appears as a separate section, Sec. 83.8.
Section 83.6(f)
    This is a new paragraph which makes explicit that the regulations 
apply not only to tribes which have existed historically as a single 
entity, but also to tribes which are the result of the historical 
combination of several tribes or subunits into a single political 
entity. Language to this effect was added to criterion (b) in the 
proposed revised regulations. That language in criterion (b) has been 
replaced by this general provision. Similar language appears in 
criterion (e) of the present regulations and, for reasons of clarity, 
has been left in that criterion statement.

Section 83.7  Mandatory Criteria for Federal Acknowledgment

Section 83.7(a)
    Comments: There were many comments that this criterion was unfair, 
burdensome and unnecessary. Strong concerns were raised, particularly 
regarding historical identification of groups in the South, that racial 
prejudice, poverty, and isolation have resulted in either a lack of 
adequate records or records which unfairly characterized Indian groups 
as not being Indian. One commenter considered the criterion unnecessary 
because the Indian character of a group should be established 
adequately by the requirement under criterion 83.7(e) to show Indian 
ancestry, and under criteria 83.7(b) and (c) to show continuity of 
tribal community and political influence.
    Response: The requirement for continued identification complements 
criteria (b), community, (c), political influence, and (e), descent 
from a historical tribe. The criterion is intended to exclude from 
acknowledgment those entities which have only recently been identified 
as being Indian or whose Indian identity is based solely on self-
identification.
    The criterion for continued identification has been revised to 
reduce the burden of preparing petitions, as well as to address 
problems in the historical record in some areas of the country. The 
requirement for substantially continuous external identification has 
been reduced to require that it only be demonstrated since 1900. This 
avoids some of the problems with historical records in earlier periods 
while retaining the requirement for substantially continuous 
identification as Indian. To further address the question of use of 
historical records, language has been added to this criterion to make 
explicit that the existence of historical records denying the Indian 
character of a group will not be considered definitive evidence that 
the group does not meet this criterion. In applying the present 
acknowledgment regulations, records denying the Indian character of a 
group have not been considered definitive, particularly where there is 
evidence that the records have been influenced by racial bias, and 
where other, reliable records affirming the group's Indian identity 
have also been available.
    Comments: Few changes were made in this paragraph in the proposed 
revised regulations. For consistency, the word ``repeated'' was added 
to several of the descriptions of specific evidence to be used to meet 
the criterion. While most commenters viewed these descriptions as 
useful, they felt that addition of the term ``repeated'' might be taken 
to mean that repeated demonstration over time was required for each 
kind of external identification.
    Response: The intent of the paragraph is to outline the kinds of 
evidence which may be used in combination to demonstrate substantially 
continuous identification. In response to the comments, the term 
``repeated'' has been taken out of the descriptions, since the basic 
criterion language clearly indicates that consistent identification by 
outsiders is required.
    State and regional organizations have been added to Sec. 83.7(a)(7) 
to better reflect the range of Indian organizations which may provide 
external identification.
    The criterion language has been revised to state that the kinds of 
evidence specified ``may'' rather than ``shall'' be used to demonstrate 
substantially continuous Indian identity. This has been done to reflect 
explicitly how this criterion has been applied under the present 
regulations, as well as to maintain consistency with the lists of 
evidence provided for other criteria, which are not mandatory.
    Comment: One commenter stated that the criterion should require 
identification as an Indian tribe, not just as an Indian entity.
    Response: The Department feels there is no need to revise the 
criterion in this manner. The criterion serves to establish the Indian 
identification as a group, but does not determine the character of that 
group. Tribal character is determined by the other criteria.
Section 83.7(b)
    Introduction: A list of specific evidence that can be used to 
demonstrate this criterion, including evidence considered sufficient in 
itself, has been added to this criterion. This provides a clearer 
explanation of the meaning of the criterion and associated definitions, 
and of the burden required to demonstrate this criterion.
    Comments: Criterion (b), demonstration of community, and the 
associated definition of community in Sec. 83.1, were substantially 
revised in the proposed revised rule. The revision omitted an 
apparently implied requirement that a group live in a geographical 
community in order to demonstrate that this criterion was met. The 
revised definition effectively requires a showing that substantial 
social relationships and/or social interaction are maintained widely 
within the membership, i.e., that members are more than simply a 
collection of Indian descendants, and that the membership is socially 
distinct from non-Indians.
    Several commenters applauded the omission of a geographical or 
territorial requirement as better reflecting the circumstances of 
unrecognized tribes in some parts of the country. Two commenters 
objected on the grounds that a tribe cannot exist without a territorial 
basis.
    Response: The omission of a geographical requirement reflects 
current practices in interpreting the regulations and recognizes that 
tribal social relations may be maintained even though members are not 
in close geographical proximity. It focuses on the essential 
requirement that such relationships exist to a significant degree. The 
change has been made so that the definition of community could 
encompass all forms of social interaction and not just the traditional 
circumstances where a tribe lived on a separate landbase. It also takes 
into account the historical difficulties and limitations which may have 
made it impossible for unrecognized groups to maintain a separate 
geographical community. The revised criterion does not eliminate the 
possibility that geographical concentrations may provide direct or 
supporting evidence concerning the existence of a community. The 
statements of specific evidence added to the criterion state explicitly 
that the existence of an exclusive territorial area is strong evidence 
that a community exists, because it indicates that significant social 
relationships are being maintained. Thus, the use of geographical 
evidence remains an option, but not a requirement.
    Comment: Several commenters maintained that the existing 
regulations only required a showing that members were sufficiently 
concentrated geographically to allow the possibility that they could 
maintain social and political relationships, without having to show 
that such relationships actually existed. They maintained that a 
requirement to demonstrate that social relationships actually exists 
represents a change in the regulations.
    Response: This view misinterprets the definition of community in 
the present regulations. The revision does not constitute a change in 
meaning. It is consistent with the intent of the regulations and with 
the legal precedents underlying the regulations, which require 
demonstration of the social solidarity of the tribe. It is also 
consistent with all acknowledgment decisions made under the existing 
regulations. These determinations have required evidence that 
significant social interaction and/or social relationships are actually 
maintained within the petitioner's membership.
    Comments: Two commenters maintained that the revised definition 
adds a new requirement that ``social boundaries'' be shown.
    Response: Distinctness is an essential requirement for the 
acknowledgment of tribes which are separate social and political 
entities. The existing criterion, and the revised one, both call for 
the community to be distinct from non-Indians. It is thus not a new 
requirement. The definition of ``community'' in the present regulations 
does not provide a definition of ``distinct.'' The definition in the 
revised regulations merely adds language that defines ``distinct.''
    Further, sharp social distinctions have been treated under the 
present regulations as strong evidence of cohesion within a community, 
since they have the effect of strengthening social interaction and 
relations within a group. Language to this effect has been added to 
criterion (b), as part of the examples of evidence which may be used to 
demonstrate the criterion. Sharp social distinctions include patterns 
of discrimination where members of a group are excluded or limited in 
their participation in the institutions of the larger society. While 
the acknowledgment regulations do not require that such sharp 
distinctions exist, they do require that some distinction be shown. 
Distinctions may also be maintained by the group itself, and not 
imposed by outsiders. In order to clarify the intent of the definition 
of community it has been modified to indicate that social distinction 
is the key element in the second part of the definition.
    Comments: The proposed revised regulations added language to 
criterion (b) making it explicit that community must be demonstrated 
historically as well as presently. This language reflects the 
interpretation of the original regulations used in previous 
acknowledgment decisions.
    Demonstration of continuity of a historical community is necessary 
in order to meet the intent of the regulations that continuity of 
tribal existence is the essential requirement for acknowledgment. In 
addition, political authority cannot be demonstrated without showing 
that there is a community within which political influence is 
exercised.
    Some comments approved the inclusion of this language. Others 
opposed it as an escalation of requirements. These latter commenters 
further saw this revision and the revised definition of community as 
requiring a demonstration of specific details of interactions in the 
historical past, and thus as creating an impossible burden. They also 
viewed the requirement to demonstrate historical distinctness of 
community as adding a new research burden, that of ``reconstructing 
social boundaries.''
    Response: A detailed description of individual social relationships 
has not been required in past acknowledgment decisions where historical 
community has been demonstrated successfully and it is not required 
here. The descriptions of specific kinds of evidence to demonstrate 
community make clear that detailed sociological reconstructions are not 
required. That is, historical community may be demonstrated by other 
means such as by showing distinct territorial areas occupied by the 
group, strong patterns of intermarriage within the group, etc. Further, 
the language added to Sec. 83.6 clarifies that the nature and 
limitations of the historical record will be taken into account.
    No requirement is intended, nor has one been imposed in past 
decisions, to demonstrate ``social boundaries'' in the sense of a 
detailed description of social interaction. In fact, however, since 
much of the historical data on unacknowledged groups is provided by 
outsiders to a group, information on social distinction is often more 
readily available in historical sources than is information on the 
internal workings of a group.
    Comment: Several commenters objected to the use of the word 
``predominant'' in the definition of community, rather than the term 
``substantial'' as used in the previous definition. However, at least 
one commenter viewed the use of ``predominant'' as essential to insure 
that most of the group had significant social contact with each other.
    Response: The two terms appear in the contexts of two different 
definitions of community. The old definition implied a geographic 
community, while the revised one focuses on the social character of the 
community. The term ``predominant'' is used to state a requirement that 
at least half of the membership maintains significant social contact 
with each other. The Department considers this is a reasonable standard 
for defining an Indian community eligible for acknowledgment. 
Therefore, the term has been retained.
    Comment: Several individuals pointed out that retention of the 
language ``distinct from other populations in the area'' implied a 
geographical requirement, even though this was eliminated elsewhere.
    Response: We agree, so this language has been eliminated.
    Comments: Some commenters felt that having both criteria (b) and 
(c) was redundant, at least for the historical periods, since, in their 
view, one implied the other.
    Response: While the two criteria are interlinked, they are not 
identical. Previous acknowledgment decisions have delineated the 
relationship between these two criteria. Rather than eliminate one of 
the criteria, a description of how one can be used in some 
circumstances as evidence to demonstrate the other is included in the 
new descriptions of specific evidence which may be used to demonstrate 
these criteria. Contrary to the comments received, community is often 
easier to demonstrate historically than is political influence.
    Revision: To conform with the changes in criterion (a), the 
language ``viewed as American Indian'' has been eliminated. The 
language was essentially redundant with the requirement of criterion 
(a) for identification of the group as an Indian entity.
Section 83.7(c)
    Introduction: A list of specific evidence that can be used to 
demonstrate this criterion, including evidence considered sufficient in 
itself, has been added to this criterion. This addition provides a 
clearer explanation of the meaning of the criterion and associated 
definitions, and of the burden required to demonstrate this key 
criterion.
    Comment: The present regulations do not provide a definition of the 
key phrase ``tribal political influence or other authority.'' While 
some commenters approved of the definition added in Sec. 83.1 of the 
proposed revised regulations, others interpreted it as establishing new 
requirements. Commenters specifically objected to the language 
specifying that influence on members be ``in significant respects,'' 
that decisions ``substantially affect members,'' and that outside 
dealings be in ``matters of consequence.'' Several commenters suggested 
that the clauses in the definition be linked by ``and/or'' rather than 
``and'' to indicate that these were alternatives that could be used in 
combination.
    Response: The definition is not a change from present requirements. 
It reflects the legal and policy precedents underlying the regulations. 
These precedents have been used to interpret the existing regulations 
in all previous acknowledgment decisions. It is essential that more 
than a trivial degree of political influence be demonstrated. 
Petitioners should show that the leaders act in some matters of 
consequence to members or affect their behavior in more than a minimal 
way. They need not demonstrate the ability to require action or enforce 
decisions over strong opposition. It is also not necessary that 
political influence be exercised in all or most areas of members' lives 
or their relationships with other members. The definition provides for 
taking into account the history of the group, including the 
difficulties faced by unacknowledged groups in maintaining political 
influence. Yet it maintains the fundamental requirements of the 
regulations that political influence must not be so diminished as to be 
of no consequence or of minimal effect. The qualifying language is 
essential to the demonstration of political influence. Thus, it has 
been retained in the final regulations. However, the suggestion of 
linking the clauses with ``and/or'' has been adopted since it is more 
consistent with the intent of the definition.
    Comments: Two commenters wanted stronger requirements for criterion 
(c). One requested that demonstration of authority over a specific area 
be required. The other wanted the criterion to specify ``governmental'' 
authority, meaning the demonstration of extensive, often coercive 
powers similar to those of recognized tribes.
    Response: The requested changes would be an unwarranted escalation 
of the present requirements and entirely unreasonable, given the 
historical difficulties faced by many unacknowledged groups.
    Comment: Several commenters questioned the use of the term 
``tribal'' to qualify political influence or authority. The commenters 
felt that this implied some specialized type of political influence 
specific to Indians.
    Response: The term ``tribal'' has been eliminated as unnecessary. 
It's use merely suggested that the scope of influence was over the 
tribal membership. It was not intended to imply a distinct type of 
political influence.
    Comment: The significance of the word ``other'' in criterion 
83.7(c) and the related definitions was questioned. It's inclusion was 
interpreted as implying an alternative definition of political 
processes than that actually addressed in the definition.
    Response: To eliminate confusion, ``other'' has been removed. Now 
the basic phrase is ``political influence or authority'' rather than 
``political influence or other authority.'' ``Authority'' refers to 
exercise of political processes more directly and powerfully than is 
the case with ``influence.''
Section 83.7(d)
    Comments: Two commenters supported the inclusion of this criteria, 
which was only slightly revised. Another concluded that it was 
unnecessary because its requirements could be included in criteria (c) 
and (e), respectively.
    Response: This criterion is largely a technical requirement to 
provide information essential to evaluation of a petition. Since it 
does not constitute a significant burden on petitioners, it is being 
kept separate as a matter of convenience.
Section 83.7(e)
    Revisions: The order in which the requirements are presented has 
been reversed, in order to state the most fundamental requirement 
first. The paragraphs describing evidence which may be used to 
demonstrate ancestry have been revised to be consistent with each other 
and to state clearly that they should provide evidence demonstrating 
that the present membership of a petitioner is descended from a 
historic tribe.
    Comment: Two commenters questioned the adequacy of the language 
allowing ancestry to be derived from historic tribes which combined 
into one autonomous political entity. They interpreted it as requiring 
a formal union, even though tribal mergers more often occur informally. 
They also thought allowance should be made for the movement of families 
among tribes.
    Response: The present language does not require a formal union, and 
past acknowledgment decisions have not required it. The previous 
decisions have also allowed for the movement of families between 
tribes. Thus, we believe any elaboration on this issue can best be 
provided in the revised guidelines.
    Comment: Commenters generally supported the requirement of 
demonstrating tribal ancestry, but questioned whether it needed to be 
traced as far back as is currently required. They also questioned 
whether standards of proof were too strict and whether insufficient 
weight was given to oral history and tribal records, as opposed to 
governmental records.
    Response: The regulations have not been interpreted to require 
tracing ancestry to the earliest history of a group. For most groups, 
ancestry need only to be traced to rolls and/or other documents created 
when their ancestors can be identified clearly as affiliated with the 
historical tribe. Unfortunately such rolls and/or documents may not 
exist for some groups or where they do, individuals may not be 
identified as Indians. In such instances, the petitioner's task is more 
difficult as they must find other reliable evidence to establish the 
necessary link to the historical tribe.
    Weight is given to oral history, but it should be substantiated by 
documentary evidence wherever possible. Past decisions have utilized 
oral history extensively, often using it to point the way to critical 
documents. Tribal records are also given weight. In fact, all available 
materials and sources are used and their importance weighed by taking 
into account the context in which they were created.
    Comment: One commenter considered it unreasonable to require a 
description of the circumstances under which historical membership 
lists were prepared. The commenter pointed out that such information 
might not be available in the historical record. The commenter 
interpreted the wording of the regulations as requiring this 
information and was concerned that, therefore, a petitioner could be 
denied for not meeting this requirement.
    Response: Language has been added to indicate that information 
regarding the creation of past membership lists is required only if it 
can be obtained readily. Inability to provide it would not block a 
group's ability to meet this criterion. Such information is often vital 
to understanding the history of the group, and often helpful to 
demonstrating that the group meets this or other criteria.
    Comment: Two commenters wanted the criterion to state a specific 
percentage of the modern membership, such as 60 percent, that would 
have to demonstrate ancestry from the historic tribe.
    Response: The Department has intentionally avoided establishing a 
specific percentage to demonstrate required ancestry under criterion 
(e). This is because the significance of the percentage varies with the 
history and nature of a group and the particular reasons why a portion 
of the membership may not meet the requirements of the criterion.
Section 83.7(f)
    Comments: Several commenters supported the revisions made to this 
section and the related definitions of tribal roll, membership in a 
recognized tribe and tribal relations. The primary concern was that the 
meaning of ``associated with'' was unclear. One commenter objected to 
the definition of ``tribal roll'' associated with this criterion. 
Another objected to prohibiting dual enrollment, because members of 
unacknowledged groups often enroll themselves or their children in 
recognized tribes. This may be done in order to receive essential 
benefits, and not with the intent of changing tribal affiliation.
    Response: The phrase ``associated with'' is meant as a general term 
to encompass any situation where a petitioner may have had some 
relationship with a recognized tribe but is not legally incorporated 
with nor governed by that tribe and is not part of the same community. 
No better substitute term was found. The language in this section 
specifically prohibits use of the regulations to acknowledge portions 
of already recognized tribes. However, it allows for acknowledgment of 
rare cases where the petitioner has been regarded, erroneously, as part 
of or associated with another tribe, but has been a separate, 
autonomous group throughout history.
Section 83.7(g)
    No significant comments were received on this paragraph.

Section 83.8  Previous Federal Acknowledgment

    All comments relating to this section were dealt with above in the 
responses concerning general issues.

Section 83.9  Notice of Receipt of Petition (Formerly 83.8)

    This section was renumbered from Sec. 83.8, to permit insertion of 
the new, separate section concerning previous Federal acknowledgment. 
All comments relating to this section were dealt with above in the 
section concerning interested parties.

Section 83.10  Processing the Documented Petition

    Introduction: This section was renumbered from Sec. 83.9, to permit 
insertion of the new, separate section concerning previous Federal 
acknowledgment. Some paragraphs have been divided or combined, and 
renumbered, to group together related ideas.
    Comments: Numerous comments were received objecting to the fact 
that no deadlines were required for Departmental action on technical 
assistance reviews nor to commence active consideration of a case. In 
contrast, it was pointed out that there were deadlines for petitioners 
to respond to proposed findings and final determinations.
    Response: The regulations do not provide deadlines for certain 
Departmental actions nor for petitioners to submit documented petitions 
or to respond to technical assistance reviews. Deadlines only apply to 
the active consideration process, where both petitioners and the 
Department have specific timelines in which to act. The Department is 
committed to as timely and rapid consideration of petitions as 
possible. Yet, it finds it cannot guarantee deadlines for technical 
assistance reviews or initiation of active consideration, because it 
cannot predict the number size, content, or time of submission of 
documented petitions.
Section 83.10(a)
    Comments: Several commenters objected to the deletion of the phrase 
``by his staff'' in reference to research conducted for the Assistant 
Secretary. Commenters interpreted this as allowing for the use of 
contract researchers and felt strongly that contracting was not 
desirable or effective in hastening petition reviews. If contract 
research is to be allowed, provision was requested to enable 
petitioners to be fully informed about the contracting process. 
Commenters also asked to allow petitioners to decline to be reviewed by 
contractors, and to have the right to challenge the credentials of 
contract researchers.
    Response: No change is necessary in this section. While the 
Department has the obligation to perform its review using qualified 
personnel, it is not obligated to allow petitioners to determine the 
personnel reviewing petitions, whether under contract or not. 
Contracting can play a useful role in expanding the Department's 
resources and providing flexibility, thereby facilitating and 
expediting the review of petitions. Furthermore, contracting is used 
only for research purposes. Evaluation and determinations of whether a 
petitioner meets the mandatory criteria for acknowledgment are only 
carried out by Departmental staff.
Section 83.10(d)
    Comments: Some commenters approved of the change this section makes 
from basing priority of consideration on the date of submission of the 
letter of intent to the order in which petitions are ready for active 
consideration. Others opposed it as unfair or subject to manipulation.
    Response: The Department's position is that the revised priority 
register is the most equitable approach. In the past, petitions which 
were ready for active consideration but had low priority numbers based 
on the initial letter of intent were ``bumped'' by petitions completed 
much later but with a higher priority number. This wait and uncertainty 
is detrimental to the petitioning and review process.
Section 83.10(e)
    Comments: Commenters generally approved of the addition of this 
section, which provides for a limited, speedy review of petitions which 
cannot, upon examination, meet the requirements of certain 
acknowledgment criteria. The primary concern was whether sufficient 
review and due process would be accorded.
    Response: The section requires clear evidence, apparent on a 
preliminary review, that one of the three named criteria are not met. 
The section provides that, absent such clear evidence, the petition 
will be reviewed under the regular process. This limited evaluation 
will only occur after the petitioner has had the opportunity to respond 
to the technical assistance review. A proposed finding under this 
section would still be subject to the comment process before a final 
determination was issued. The petitioner would also have the 
opportunity to request reconsideration under Sec. 83.11.
Section 83.10(f)
    Comments: Several commenters were concerned that this section did 
not give the petitioner sufficient information about which personnel 
were responsible for the reviewing of their petition.
    Response: The language in this section has been modified to make 
clear that the petitioner will be notified of the personnel actually 
conducting the review of their petition, as well as the supervisor in 
charge of the review.
Section 83.10(g)
    Comments: Many commenters objected to the fact that while the 
Assistant Secretary can suspend review of a petition under provisions 
of this section, petitioners do not have the right to withdraw their 
petition or suspend its consideration. Some commenters suggested that 
the section should at least specify that the Assistant Secretary will 
consider such requests from a petitioner. Several commenters objected 
to the prohibition against withdrawal of a petition once active 
consideration was begun.
    Response: While the present section does not prohibit consideration 
of petitioner requests for suspension of consideration, language has 
been added to specify that the Assistant Secretary will consider such 
requests.
    The requirement for the Department to complete the review of any 
petition upon which work has begun has been retained. This is because 
of the considerable staff time and resources committed to a petition 
review which are wasted if the petition is subsequently withdrawn. 
Petitioners will have ample time to withdraw before active 
consideration is begun. They also will receive extensive preliminary 
review and advice concerning their petition. In addition, if 
petitioners could choose to withdraw solely because they anticipated a 
negative finding, this would create numerous administrative 
difficulties which would, in turn, slow down the reviewing process.
Section 83.10(h)
    Comments: Two commenters requested that the language in this 
section describing the requirements for the Assistant Secretary's 
report to accompany the proposed finding be expanded to require that 
the bases for the decision be made clear.
    Response: The current language calls for the report to summarize 
the ``evidence and reasoning'' for the proposed decision. Revised 
language has been added to further insure that the report provides a 
detailed discussion of the basis for the decision.
    In addition, language has been added in a new section, 
Sec. 83.10(j), to provide access to all records used in the finding, as 
well as for technical advice concerning the bases for the decision. 
Further, provision has been made for a formal meeting on the proposed 
finding which would be transcribed. This will allow a thorough 
exploration of the bases for the proposed finding which will be on the 
record, as well as an exchange of views and information between the 
Bureau, the petitioner and any interested parties. These changes accord 
with the Department's view that a proposed finding is a proposal 
subject to change based on additional analyses and evidence. Since new 
data and analysis may affect the conclusions proposed in the finding, 
it is important to make the petitioner clearly aware of the evidence 
and reasoning behind the proposed decision.
Section 83.10(i)
    Comments: Several commenters observed that, based on experience to 
date, the 120-day response period, even with a potential 120-day 
extension, is greatly insufficient. Given the limitations of petitioner 
resources and the extent and complexity of the documentation usually 
involved, they felt that additional time was needed to prepare an 
adequate response.
    Response: The Department agrees with these conclusions. The time 
periods in this section have been lengthened to provide for an initial 
180-day response period and for an extension of up to an additional 180 
days at the discretion of the Assistant Secretary. In addition, for 
consistency with other sections, the language of the section has been 
modified to make clear that comments to the Assistant Secretary may 
address any aspect of the proposed finding, not simply the ``evidence 
relied upon'', as the section currently provides.
Section 83.10(k)
    Comments: Five commenters stated that the 60-day period for 
petitioners to respond to the comments of interested parties regarding 
a proposed finding was insufficient.
    Response: The section allows for an extension of the 60-day period 
if warranted by the extent and nature of the comments. No limits are 
placed on this extension. We feel that this provision is adequate to 
address the needs of petitioners who may need additional time to 
address comments of any nature from third parties.
    Comments: Two commenters requested that interested parties be 
allowed an opportunity to respond in turn to petitioner's comments on 
their submissions.
    Response: Because the purpose of the response period is to address 
the proposed finding, there is no reason to provide for an extended 
exchange of comments between parties. However, because of the 
importance of the acknowledgment decision to petitioning groups and 
their future existence, opportunity is provided for petitioners to 
comment both on the proposed finding and on any comments received from 
other parties.
Section 83.10(l)
    Clarification: Language has been added to this section to make it 
clear that the Assistant Secretary's research for the purpose of 
analyzing the petition and obtaining information concerning the 
petitioner's status, which is stated in Sec. 83.10(a), extends through 
the period for preparation of a final determination.
    Language has also been added to make it explicit that the Assistant 
Secretary may request that a petitioner or third party supplement or 
support their comments on a proposed finding with additional 
information and explanation. Comments on proposed findings are 
sometimes submitted without adequate supporting documentation or 
explanation. The absence of this information makes evaluation of the 
comments and preparation of the final determination difficult. These 
supplementary submissions would not be required and would not require 
additional research on the part of the petitioner or commenting party. 
These revisions do not provide for a reopening of the response period 
and would not allow for the consideration of unsolicited comments 
submitted after the close of the response period.
Section 83.10(m)
    Revisions: This paragraph, numbered 83.10(l) in the proposed 
revised regulations, has been combined with the initial sentence in 
Sec. 83.10(m) (as renumbered in the proposed revised regulations), and 
designated together as Sec. 83.10(m). The other paragraphs from 
Sec. 83.10(m) (as renumbered), have been redesignated as separate 
sections.
Sections 83.10 (o) and (p) (Renumbered, Formerly 83.9(m)(2))
    Comments: Twenty comments were received on this section and the 
related section, Sec. 83.3(f). These sections set forth the prohibition 
against repetitioning by groups denied acknowledgment under the 
existing regulations. The present regulations are silent on the 
question of repetitioning. All but one of the commenters opposed this 
change in the regulations. The primary objections were that 
undiscovered evidence which might change the outcome of decisions could 
come to light in the future. There was also some concern that petitions 
could be denied because the petitioner's research was inadequate.
    Some felt that proposed changes in the regulations might affect the 
outcome if a petition decided under the existing regulations was 
reevaluated under the revised rules. These commenters wanted the 
revised reconsideration process made available to petitioners denied in 
the past under the present regulations.
    Response: The Department's position is that there should be an 
eventual end to the present administrative process. Those petitioners 
who were denied went through several stages of review with multiple 
opportunities to develop and submit evidence. Allowing such groups to 
return to the process with new evidence would burden the process for 
the numerous remaining petitioners. The changes in the regulations are 
not so fundamental that they can be expected to result in different 
outcomes for cases previously decided. Denied petitioners still have 
the opportunity to seek legislative recognition if substantial new 
evidence develops.

Section 83.11  Independent Review, Reconsideration and Final Action

    Introduction: This section has been reorganized to clarify the 
steps in the process and to group together as far as possible the 
actions required of each party. This section was formerly numbered 
Sec. 83.10. To better reflect the nature of this process, the words 
``Independent Review'' have been added to the title of the section.
    General Comments: Many commenters supported the provision for 
review of reconsideration requests by an independent body. Some 
commenters objected to review by the IBIA, however, stating incorrectly 
that it was part of the Bureau of Indian Affairs. Other commenters felt 
that a review body outside of the Department would provide the fairest, 
most independent review.
    Commenters also questioned whether the IBIA has the technical 
expertise necessary to adequately review acknowledgment decisions. 
These observers requested that an ad hoc, independent panel of 
professionals be utilized to review appeals.
    Response: The IBIA is an independent administrative review body 
within the Department. Its decisions are not reviewable by agency 
officials. The Department does not believe that an independent panel of 
experts would be an appropriate body to make the actual decision for 
the Secretary whether to request reconsideration.
    The proposed revised regulations included general provisions 
intended to address the need for technical input and advice to the 
IBIA. Section 83.11(e)(4) provides for a hearing before an 
administrative law judge and Sec. 83.11(e)(3) provides for technical 
comment by the Bureau at the Board's request, although the Bureau is 
not otherwise involved in the independent review process. However, we 
believe there is some merit to the concern whether adequate provision 
has been made to address technical aspects of acknowledgment decisions 
in the independent review process as set forth in the proposed revised 
regulations. Therefore, the language of Sec. 83.11(e)(3) has been 
modified to allow the Board to obtain independent expert comment if it 
deems this appropriate. Additional language has been added to 
Sec. 83.11(e)(4) to strengthen the role of the discretionary hearing 
before an administrative law judge provided for in this paragraph.
    Comments: Many commenters objected to the additional grounds for 
reconsideration set forth in Sec. 83.11(d)(4). This paragraph provides 
that alternative interpretations of evidence, not previously reviewed, 
may be considered. Commenters interpreted this solely in terms of 
allowing reversal of positive acknowledgment decisions. One commenter 
approved of the additional grounds but questioned the competence of the 
IBIA to utilize them because of its lack of technical expertise. 
Another commenter wanted this provision limited to expert opinion, with 
legal opinions barred with regard to this specific ground for 
reconsideration.
    Response: The additional grounds are neutral. They allow equally 
for a positive or a negative decision to be vacated and returned to the 
Assistant Secretary for reconsideration on the basis that the 
interpretation used was incorrect or that there are valid, credible 
alternative interpretations of the evidence. We believe these 
additional grounds further guarantee fairness and flexibility 
appropriate to the complexity of these decisions. We do not believe it 
would be practical or appropriate to attempt to limit in advance the 
kinds of alternative interpretations offered for consideration.
    Comment:  Some commenters wanted to omit all but the ``new 
evidence'' grounds for reconsideration. Others objected to any 
opportunity to present new evidence at all, on the grounds that ``due 
diligence'' to develop such evidence should have been exercised by the 
petitioner, who has the burden of proof under the regulations.
    Response:  The administrative process is predicated on providing a 
maximum opportunity to develop and provide evidence, as well as further 
analysis of existing evidence, free of as many procedural 
technicalities as possible. We believe this opportunity should extend 
to the reconsideration process. In addition, as the response to the 
previous set of comments indicates, we believe that the most thorough 
and equitable process requires consideration of more than just new 
evidence.
    Comments:  Two commenters objected to the provisions of 
Sec. 83.11(e)(8) calling for the Assistant Secretary to designate the 
portions of the record to be sent to the IBIA. They felt that this 
would allow withholding of vital documents or manipulation of the 
decision.
    Response:  The section makes explicit that the entire record is 
available to the Board. The limited initial transmission is called for 
because of the extensive nature of the record, which often runs in 
excess of 20,000 pages. Thus, it is merely a convenience for the 
initial stages of the process of considering requests for 
reconsideration. The filings of petitioners and interested parties will 
require, in all likelihood, an examination of more of the record.
    Comment:  Several commenters pointed out that there was no 
provision for petitioners or interested parties to comment on materials 
submitted to the Secretary which result in a request for 
reconsideration under based on grounds other than those in 
Sec. 83.11(d)(1-4). One commenter wanted all parties to have an 
opportunity to comment before the Secretary made a decision whether to 
request reconsideration.
    Response:  We believe there is merit in having an opportunity to 
comment in such circumstances, parallel to that provided in the review 
by the IBIA. We also agree that it is most appropriate that such 
comments be received before the decision is made by the Secretary. 
Therefore, provision has been made for submission to the Secretary of 
comments on requests for the Secretary to ask the Assistant Secretary 
to reconsider the determination. Where comments are from interested 
parties, provision has been made for a reply by the petitioner. The 
revised language establishes timeframes for receipt of comment.
    Revision: To simplify the reconsideration process, it has been 
reorganized to provide that requests for reconsideration be made 
directly to the Board. The initial determination of the nature of the 
request is a straightforward one that can be more quickly made by the 
Board.
    As another means of simplifying the reconsideration process, the 
Secretary will only review requests for reconsideration made on other 
than the four basic grounds set forth in Sec. 83.11(b) if the Board 
does not remand the determination to the Assistant Secretary on one or 
more of the basic grounds. The Assistant Secretary, in the event of a 
remand, would be authorized to also consider any other grounds alleged 
for reconsideration besides the four basic ones.
    Comments:  One commenter wanted all parties to have an opportunity 
to comment on any technical comments provided by the Bureau under 
Sec. 83.11(e)(3).
    Response:  It is not necessary to provide for such a comment 
opportunity. The Bureau under the regulations does not participate as 
an active party opposing or supporting the submissions of petitioner or 
interested parties or defending the determination. It is intended only 
that the Board have the opportunity to obtain the technical comment 
that it may need to make its decision. Further, the Board has authority 
under Sec. 83.11(e)(2) to allow the active participants to respond to 
such technical comments if it deems this necessary and appropriate.

Section 83.12  Implementation of Decisions

Section 83.12(a)
    Comments:  Several commenters objected to the change made in this 
section identifying tribes acknowledged through this process as 
``historic'' tribes. The commenters objected to the distinction that 
has been made by the Department for many years between historical 
tribes and other organized Indian communities. The political authority 
of historical tribes is derived from aboriginal sovereignty because 
they have existed historically as distinct tribes since first 
acknowledgment. In contrast, the political authority of other organized 
Indian communities is considered to be based solely on powers derived 
from Federal statutes.
    Response:  This language is included to make clear that tribes 
acknowledged through the process are historical tribes by virtue of the 
requirements of the regulations. Removing the language would serve no 
purpose in resolving current objections to the distinction between 
historic tribes and other organized Indian communities.
    The language of this section has been edited to state more directly 
that tribes acknowledged through this process are historic tribes and 
to clarify that all federally recognized tribes are considered to have 
a government-to-government relationship with the United States.
Section 83.12(b)
    Comments:  Several commenters approved of the limitations 
prescribed by this section on the base membership roll of a newly 
acknowledged tribe. Others considered the limitation an infringement on 
tribal sovereignty.
    Response: The provision was included to clearly define tribal 
membership prior to acknowledgment. It was also included so that 
membership for purposes of Federal funding cannot later be so greatly 
expanded that the petitioner becomes, in effect, a different group than 
the one acknowledged. The acknowledgment decision rests on a 
determination that members of the petitioner form a cohesive social 
community and exercise tribal political influence. If the membership 
after acknowledgment expands so substantially that it changes the 
character of the group, then the validity of the acknowledgment 
decision may become questionable. The language of this section does 
allow for the addition to the base roll of these individuals who are 
politically and socially part of the tribe and who meet its membership 
requirements.

Section 83.13  Information Collection

    Comment: Only one comment was received which concern the burden of 
work stated in the information collection statement. This commenter 
felt that the actual burden was much higher than the stated one.
    Response: The Department does not agree that the stated burden is 
unrealistic, if the research is focused on the information actually 
needed to demonstrate tribal existence. Considerable scarce research 
resources are wasted on materials which are not relevant to the 
criteria. The stated burden hours have been reduced, to reflect the 
revisions in the criteria and their application to petitioners which 
can demonstrate tribal continuity with previously acknowledged tribes. 
The reduction also reflects correction of an error in calculating the 
number of genealogical forms which need to be filled out for a 
petition. The explanation of the purpose of the information collection 
has been revised slightly to more clearly reflect all seven of the 
criteria in section 83.7(a-g).

III. Findings and Certifications

    The Department has certified to the Office of Management and Budget 
(OMB) that these final regulations meet the applicable standards 
provided in Sections 2(a) and 2(b)(2) of Executive Order 12778. These 
regulations have no preemptive or retroactive effect. A major purpose 
of the revisions has been to address the clarity of language and 
general draftsmanship of the regulations. Major efforts have been made 
to reduce the burden on petitioners.
    This rule has been reviewed under Executive Order 12866. In 
accordance with E.O. 12630, the Department has determined that this 
rule does not have significant takings implications.
    The Department has determined that this rule does not have 
significant federalism effects on States. This rule concerns the 
establishment by the Federal Government of a government-to-government 
relationship between the United States and Indian tribes not presently 
accorded that relationship. It does not affect State laws or powers, 
but may change the extent of their exercise or applicability to a tribe 
which becomes federally acknowledged. Costs or burdens to the States 
would not be significantly increased. Provision is made for State 
comment during the review of petitions for acknowledgment.
    The Department has determined that this rulemaking does not 
constitute a major Federal action significantly affecting the quality 
of the human environment and that no detailed statement is required 
pursuant to the National Environmental Policy Act of 1969.
    The information collection requirements contained in Sec. 83.7 have 
been approved by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. and assigned clearance number OMB 1076-0104.
    The primary author of this document is George Roth, Cultural 
Anthropologist, Branch of Acknowledgment and Research, Bureau of Indian 
Affairs.

List of Subjects in 25 CFR Part 83

    Administrative practice and procedure, Indians-tribal government.

    For the reasons set out in the preamble, Title 25, Chapter 1 of the 
Code of Federal Regulations is amended by revising part 83 to read as 
follows:

PART 83--PROCEDURES FOR ESTABLISHING THAT AN AMERICAN INDIAN GROUP 
EXISTS AS AN INDIAN TRIBE

Sec.
83.1  Definitions.
83.2  Purpose.
83.3  Scope.
83.4  Filing a letter of intent.
83.5  Duties of the Department.
83.6  General provisions for the documented petition.
83.7  Mandatory criteria for Federal acknowledgment.
83.8  Previous Federal acknowledgment
83.9  Notice of receipt of a petition.
83.10  Processing of the documented petition.
83.11  Independent review, reconsideration and final action.
83.12  Implementation of decisions.
83.13  Information collection.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 43 U.S.C. 1457; and 
209 Departmental Manual 8.


Sec. 83.1  Definitions.

    As used in this part:
    Area Office means a Bureau of Indian Affairs Area Office.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
or that officer's authorized representative.
    Autonomous means the exercise of political influence or authority 
independent of the control of any other Indian governing entity. 
Autonomous must be understood in the context of the history, geography, 
culture and social organization of the petitioning group.
    Board means the Interior Board of Indian Appeals.
    Bureau means the Bureau of Indian Affairs.
    Community means any group of people which can demonstrate that 
consistent interactions and significant social relationships exist 
within its membership and that its members are differentiated from and 
identified as distinct from nonmembers. Community must be understood in 
the context of the history, geography, culture and social organization 
of the group.
    Continental United States means the contiguous 48 states and 
Alaska.
    Continuously or continuous means extending from first sustained 
contact with non-Indians throughout the group's history to the present 
substantially without interruption.
    Department means the Department of the Interior.
    Documented petition means the detailed arguments made by a 
petitioner to substantiate its claim to continuous existence as an 
Indian tribe, together with the factual exposition and all documentary 
evidence necessary to demonstrate that these arguments address the 
mandatory criteria in Sec. 83.7(a) through (g).
    Historically, historical or history means dating from first 
sustained contact with non-Indians.
    Indian group or group means any Indian or Alaska Native aggregation 
within the continental United States that the Secretary of the Interior 
does not acknowledge to be an Indian tribe.
    Indian tribe, also referred to herein as tribe, means any Indian or 
Alaska Native tribe, band, pueblo, village, or community within the 
continental United States that the Secretary of the Interior presently 
acknowledges to exist as an Indian tribe.
    Indigenous means native to the continental United States in that at 
least part of the petitioner's territory at the time of sustained 
contact extended into what is now the continental United States.
    Informed party means any person or organization, other than an 
interested party, who requests an opportunity to submit comments or 
evidence or to be kept informed of general actions regarding a specific 
petitioner.
    Interested party means any person, organization or other entity who 
can establish a legal, factual or property interest in an 
acknowledgment determination and who requests an opportunity to submit 
comments or evidence or to be kept informed of general actions 
regarding a specific petitioner. ``Interested party'' includes the 
governor and attorney general of the state in which a petitioner is 
located, and may include, but is not limited to, local governmental 
units, and any recognized Indian tribes and unrecognized Indian groups 
that might be affected by an acknowledgment determination.
    Letter of intent means an undocumented letter or resolution by 
which an Indian group requests Federal acknowledgment as an Indian 
tribe and expresses its intent to submit a documented petition.
    Member of an Indian group means an individual who is recognized by 
an Indian group as meeting its membership criteria and who consents to 
being listed as a member of that group.
    Member of an Indian tribe means an individual who meets the 
membership requirements of the tribe as set forth in its governing 
document or, absent such a document, has been recognized as a member 
collectively by those persons comprising the tribal governing body, and 
has consistently maintained tribal relations with the tribe or is 
listed on the tribal rolls of that tribe as a member, if such rolls are 
kept.
    Petitioner means any entity that has submitted a letter of intent 
to the Secretary requesting acknowledgment that it is an Indian tribe.
    Political influence or authority means a tribal council, 
leadership, internal process or other mechanism which the group has 
used as a means of influencing or controlling the behavior of its 
members in significant respects, and/or making decisions for the group 
which substantially affect its members, and/or representing the group 
in dealing with outsiders in matters of consequence. This process is to 
be understood in the context of the history, culture and social 
organization of the group.
    Previous Federal acknowledgment means action by the Federal 
government clearly premised on identification of a tribal political 
entity and indicating clearly the recognition of a relationship between 
that entity and the United States.
    Secretary means the Secretary of the Interior or that officer's 
authorized representative.
    Sustained contact means the period of earliest sustained non-Indian 
settlement and/or governmental presence in the local area in which the 
historical tribe or tribes from which the petitioner descends was 
located historically.
    Tribal relations means participation by an individual in a 
political and social relationship with an Indian tribe.
    Tribal roll, for purposes of these regulations, means a list 
exclusively of those individuals who have been determined by the tribe 
to meet the tribe's membership requirements as set forth in its 
governing document. In the absence of such a document, a tribal roll 
means a list of those recognized as members by the tribe's governing 
body. In either case, those individuals on a tribal roll must have 
affirmatively demonstrated consent to being listed as members.


Sec. 83.2  Purpose.

    The purpose of this part is to establish a departmental procedure 
and policy for acknowledging that certain American Indian groups exist 
as tribes. Acknowledgment of tribal existence by the Department is a 
prerequisite to the protection, services, and benefits of the Federal 
government available to Indian tribes by virtue of their status as 
tribes. Acknowledgment shall also mean that the tribe is entitled to 
the immunities and privileges available to other federally acknowledged 
Indian tribes by virtue of their government-to-government relationship 
with the United States as well as the responsibilities, powers, 
limitations and obligations of such tribes. Acknowledgment shall 
subject the Indian tribe to the same authority of Congress and the 
United States to which other federally acknowledged tribes are 
subjected.


Sec. 83.3  Scope.

    (a) This part applies only to those American Indian groups 
indigenous to the continental United States which are not currently 
acknowledged as Indian tribes by the Department. It is intended to 
apply to groups that can establish a substantially continuous tribal 
existence and which have functioned as autonomous entities throughout 
history until the present.
    (b) Indian tribes, organized bands, pueblos, Alaska Native 
villages, or communities which are already acknowledged as such and are 
receiving services from the Bureau of Indian Affairs may not be 
reviewed under the procedures established by these regulations.
    (c) Associations, organizations, corporations or groups of any 
character that have been formed in recent times may not be acknowledged 
under these regulations. The fact that a group that meets the criteria 
in Sec. 83.7 (a) through (g) has recently incorporated or otherwise 
formalized its existing autonomous political process will be viewed as 
a change in form and have no bearing on the Assistant Secretary's final 
decision.
    (d) Splinter groups, political factions, communities or groups of 
any character that separate from the main body of a currently 
acknowledged tribe may not be acknowledged under these regulations. 
However, groups that can establish clearly that they have functioned 
throughout history until the present as an autonomous tribal entity may 
be acknowledged under this part, even though they have been regarded by 
some as part of or have been associated in some manner with an 
acknowledged North American Indian tribe.
    (e) Further, groups which are, or the members of which are, subject 
to congressional legislation terminating or forbidding the Federal 
relationship may not be acknowledged under this part.
    (f) Finally, groups that previously petitioned and were denied 
Federal acknowledgment under these regulations or under previous 
regulations in part 83 of this title, may not be acknowledged under 
these regulations. This includes reorganized or reconstituted 
petitioners previously denied, or splinter groups, spin-offs, or 
component groups of any type that were once part of petitioners 
previously denied.
    (g) Indian groups whose documented petitions are under active 
consideration at the effective date of these revised regulations may 
choose to complete their petitioning process either under these 
regulations or under the previous acknowledgment regulations in part 83 
of this title. This choice must be made by April 26, 1994. This option 
shall apply to any petition for which a determination is not final and 
effective. Such petitioners may request a suspension of consideration 
under Sec. 83.10(g) of not more than 180 days in order to provide 
additional information or argument.


Sec. 83.4  Filing a letter of intent.

    (a) Any Indian group in the continental United States that believes 
it should be acknowledged as an Indian tribe and that it can satisfy 
the criteria in Sec. 83.7 may submit a letter of intent.
    (b) Letters of intent requesting acknowledgment that an Indian 
group exists as an Indian tribe shall be filed with the Assistant 
Secretary--Indian Affairs, Department of the Interior, 1849 C Street, 
NW., Washington, DC 20240. Attention: Branch of Acknowledgment and 
Research, Mail Stop 2611-MIB. A letter of intent may be filed in 
advance of, or at the same time as, a group's documented petition.
    (c) A letter of intent must be produced, dated and signed by the 
governing body of an Indian group and submitted to the Assistant 
Secretary.


Sec. 83.5  Duties of the Department.

    (a) The Department shall publish in the Federal Register, no less 
frequently than every three years, a list of all Indian tribes entitled 
to receive services from the Bureau by virtue of their status as Indian 
tribes. The list may be published more frequently, if the Assistant 
Secretary deems it necessary.

    (b) The Assistant Secretary shall make available revised and 
expanded guidelines for the preparation of documented petitions by 
September 23, 1994. These guidelines will include an explanation of the 
criteria and other provisions of the regulations, a discussion of the 
types of evidence which may be used to demonstrate particular criteria 
or other provisions of the regulations, and general suggestions and 
guidelines on how and where to conduct research. The guidelines may be 
supplemented or updated as necessary. The Department's example of a 
documented petition format, while preferable, shall not preclude the 
use of any other format.

    (c) The Department shall, upon request, provide petitioners with 
suggestions and advice regarding preparation of the documented 
petition. The Department shall not be responsible for the actual 
research on behalf of the petitioner.
    (d) Any notice which by the terms of these regulations must be 
published in the Federal Register, shall also be mailed to the 
petitioner, the governor of the state where the group is located, and 
to other interested parties.

    (e) After an Indian group has filed a letter of intent requesting 
Federal acknowledgment as an Indian tribe and until that group has 
actually submitted a documented petition, the Assistant Secretary may 
contact the group periodically and request clarification, in writing, 
of its intent to continue with the petitioning process.

    (f) All petitioners under active consideration shall be notified, 
by April 16, 1994 of the opportunity under Sec. 83.3(g) to choose 
whether to complete their petitioning process under the provisions of 
these revised regulations or the previous regulations as published, on 
September 5, 1978, at 43 FR 39361.

    (g) All other groups that have submitted documented petitions or 
letters of intent shall be notified of and provided with a copy of 
these regulations by July 25, 1994.

Sec. 83.6  General provisions for the documented petition.

    (a) The documented petition may be in any readable form that 
contains detailed, specific evidence in support of a request to the 
Secretary to acknowledge tribal existence.
     (b) The documented petition must include a certification, signed 
and dated by members of the group's governing body, stating that it is 
the group's official documented petition.
    (c) A petitioner must satisfy all of the criteria in paragraphs (a) 
through (g) of Sec. 83.7 in order for tribal existence to be 
acknowledged. Therefore, the documented petition must include thorough 
explanations and supporting documentation in response to all of the 
criteria. The definitions in Sec. 83.1 are an integral part of the 
regulations, and the criteria should be read carefully together with 
these definitions.
    (d) A petitioner may be denied acknowledgment if the evidence 
available demonstrates that it does not meet one or more criteria. A 
petitioner may also be denied if there is insufficient evidence that it 
meets one or more of the criteria. A criterion shall be considered met 
if the available evidence establishes a reasonable likelihood of the 
validity of the facts relating to that criterion. Conclusive proof of 
the facts relating to a criterion shall not be required in order for 
the criterion to be considered met.
    (e) Evaluation of petitions shall take into account historical 
situations and time periods for which evidence is demonstrably limited 
or not available. The limitations inherent in demonstrating the 
historical existence of community and political influence or authority 
shall also be taken into account. Existence of community and political 
influence or authority shall be demonstrated on a substantially 
continuous basis, but this demonstration does not require meeting these 
criteria at every point in time. Fluctuations in tribal activity during 
various years shall not in themselves be a cause for denial of 
acknowledgment under these criteria.
    (f) The criteria in Sec. 83.7 (a) through (g) shall be interpreted 
as applying to tribes or groups that have historically combined and 
functioned as a single autonomous political entity.
    (g) The specific forms of evidence stated in the criteria in 
Sec. 83.7 (a) through (c) and Sec. 83.7(e) are not mandatory 
requirements. The criteria may be met alternatively by any suitable 
evidence that demonstrates that the petitioner meets the requirements 
of the criterion statement and related definitions.


Sec. 83.7  Mandatory criteria for Federal acknowledgment.

    The mandatory criteria are:
    (a) The petitioner has been identified as an American Indian entity 
on a substantially continuous basis since 1900. Evidence that the 
group's character as an Indian entity has from time to time been denied 
shall not be considered to be conclusive evidence that this criterion 
has not been met. Evidence to be relied upon in determining a group's 
Indian identity may include one or a combination of the following, as 
well as other evidence of identification by other than the petitioner 
itself or its members.
    (1) Identification as an Indian entity by Federal authorities.
    (2) Relationships with State governments based on identification of 
the group as Indian.
    (3) Dealings with a county, parish, or other local government in a 
relationship based on the group's Indian identity.
    (4) Identification as an Indian entity by anthropologists, 
historians, and/or other scholars.
    (5) Identification as an Indian entity in newspapers and books.
    (6) Identification as an Indian entity in relationships with Indian 
tribes or with national, regional, or state Indian organizations.
    (b) A predominant portion of the petitioning group comprises a 
distinct community and has existed as a community from historical times 
until the present.
    (1) This criterion may be demonstrated by some combination of the 
following evidence and/or other evidence that the petitioner meets the 
definition of community set forth in Sec. 83.1:
    (i) Significant rates of marriage within the group, and/or, as may 
be culturally required, patterned out-marriages with other Indian 
populations.
    (ii) Significant social relationships connecting individual 
members.
    (iii) Significant rates of informal social interaction which exist 
broadly among the members of a group.
    (iv) A significant degree of shared or cooperative labor or other 
economic activity among the membership.
    (v) Evidence of strong patterns of discrimination or other social 
distinctions by non-members.
    (vi) Shared sacred or secular ritual activity encompassing most of 
the group.
    (vii) Cultural patterns shared among a significant portion of the 
group that are different from those of the non-Indian populations with 
whom it interacts. These patterns must function as more than a symbolic 
identification of the group as Indian. They may include, but are not 
limited to, language, kinship organization, or religious beliefs and 
practices.
    (viii) The persistence of a named, collective Indian identity 
continuously over a period of more than 50 years, notwithstanding 
changes in name.
    (ix) A demonstration of historical political influence under the 
criterion in Sec. 83.7(c) shall be evidence for demonstrating 
historical community.
    (2) A petitioner shall be considered to have provided sufficient 
evidence of community at a given point in time if evidence is provided 
to demonstrate any one of the following:
    (i) More than 50 percent of the members reside in a geographical 
area exclusively or almost exclusively composed of members of the 
group, and the balance of the group maintains consistent interaction 
with some members of the community;
    (ii) At least 50 percent of the marriages in the group are between 
members of the group;
    (iii) At least 50 percent of the group members maintain distinct 
cultural patterns such as, but not limited to, language, kinship 
organization, or religious beliefs and practices;
    (iv) There are distinct community social institutions encompassing 
most of the members, such as kinship organizations, formal or informal 
economic cooperation, or religious organizations; or
    (v) The group has met the criterion in Sec. 83.7(c) using evidence 
described in Sec. 83.7(c)(2).
    (c) The petitioner has maintained political influence or authority 
over its members as an autonomous entity from historical times until 
the present.
    (1) This criterion may be demonstrated by some combination of the 
evidence listed below and/or by other evidence that the petitioner 
meets the definition of political influence or authority in Sec. 83.1.
    (i) The group is able to mobilize significant numbers of members 
and significant resources from its members for group purposes.
    (ii) Most of the membership considers issues acted upon or actions 
taken by group leaders or governing bodies to be of importance.
    (iii) There is widespread knowledge, communication and involvement 
in political processes by most of the group's members.
    (iv) The group meets the criterion in Sec. 83.7(b) at more than a 
minimal level.
    (v) There are internal conflicts which show controversy over valued 
group goals, properties, policies, processes and/or decisions.
    (2) A petitioning group shall be considered to have provided 
sufficient evidence to demonstrate the exercise of political influence 
or authority at a given point in time by demonstrating that group 
leaders and/or other mechanisms exist or existed which:
    (i) Allocate group resources such as land, residence rights and the 
like on a consistent basis.
    (ii) Settle disputes between members or subgroups by mediation or 
other means on a regular basis;
    (iii) Exert strong influence on the behavior of individual members, 
such as the establishment or maintenance of norms and the enforcement 
of sanctions to direct or control behavior;
    (iv) Organize or influence economic subsistence activities among 
the members, including shared or cooperative labor.
    (3) A group that has met the requirements in paragraph 83.7(b)(2) 
at a given point in time shall be considered to have provided 
sufficient evidence to meet this criterion at that point in time.
    (d) A copy of the group's present governing document including its 
membership criteria. In the absence of a written document, the 
petitioner must provide a statement describing in full its membership 
criteria and current governing procedures.
    (e) The petitioner's membership consists of individuals who descend 
from a historical Indian tribe or from historical Indian tribes which 
combined and functioned as a single autonomous political entity.
    (1) Evidence acceptable to the Secretary which can be used for this 
purpose includes but is not limited to:
    (i) Rolls prepared by the Secretary on a descendancy basis for 
purposes of distributing claims money, providing allotments, or other 
purposes;
    (ii) State, Federal, or other official records or evidence 
identifying present members or ancestors of present members as being 
descendants of a historical tribe or tribes that combined and 
functioned as a single autonomous political entity.
    (iii) Church, school, and other similar enrollment records 
identifying present members or ancestors of present members as being 
descendants of a historical tribe or tribes that combined and 
functioned as a single autonomous political entity.
    (iv) Affidavits of recognition by tribal elders, leaders, or the 
tribal governing body identifying present members or ancestors of 
present members as being descendants of a historical tribe or tribes 
that combined and functioned as a single autonomous political entity.
    (v) Other records or evidence identifying present members or 
ancestors of present members as being descendants of a historical tribe 
or tribes that combined and functioned as a single autonomous political 
entity.
    (2) The petitioner must provide an official membership list, 
separately certified by the group's governing body, of all known 
current members of the group. This list must include each member's full 
name (including maiden name), date of birth, and current residential 
address. The petitioner must also provide a copy of each available 
former list of members based on the group's own defined criteria, as 
well as a statement describing the circumstances surrounding the 
preparation of the current list and, insofar as possible, the 
circumstances surrounding the preparation of former lists.
    (f) The membership of the petitioning group is composed principally 
of persons who are not members of any acknowledged North American 
Indian tribe. However, under certain conditions a petitioning group may 
be acknowledged even if its membership is composed principally of 
persons whose names have appeared on rolls of, or who have been 
otherwise associated with, an acknowledged Indian tribe. The conditions 
are that the group must establish that it has functioned throughout 
history until the present as a separate and autonomous Indian tribal 
entity, that its members do not maintain a bilateral political 
relationship with the acknowledged tribe, and that its members have 
provided written confirmation of their membership in the petitioning 
group.
    (g) Neither the petitioner nor its members are the subject of 
congressional legislation that has expressly terminated or forbidden 
the Federal relationship.


Sec. 83.8  Previous Federal acknowledgment.

    (a) Unambiguous previous Federal acknowledgment is acceptable 
evidence of the tribal character of a petitioner to the date of the 
last such previous acknowledgment. If a petitioner provides substantial 
evidence of unambiguous Federal acknowledgment, the petitioner will 
then only be required to demonstrate that it meets the requirements of 
Sec. 83.7 to the extent required by this section.
    (b) A determination of the adequacy of the evidence of previous 
Federal action acknowledging tribal status shall be made during the 
technical assistance review of the documented petition conducted 
pursuant to Sec. 83.10(b). If a petition is awaiting active 
consideration at the time of adoption of these regulations, this review 
will be conducted while the petition is under active consideration 
unless the petitioner requests in writing that this review be made in 
advance.
    (c) Evidence to demonstrate previous Federal acknowledgment 
includes, but is not limited to:
    (1) Evidence that the group has had treaty relations with the 
United States.
    (2) Evidence that the group has been denominated a tribe by act of 
Congress or Executive Order.
    (3) Evidence that the group has been treated by the Federal 
Government as having collective rights in tribal lands or funds.
    (d) To be acknowledged, a petitioner that can demonstrate previous 
Federal acknowledgment must show that:
    (1) The group meets the requirements of the criterion in 
Sec. 83.7(a), except that such identification shall be demonstrated 
since the point of last Federal acknowledgment. The group must further 
have been identified by such sources as the same tribal entity that was 
previously acknowledged or as a portion that has evolved from that 
entity.
    (2) The group meets the requirements of the criterion in 
Sec. 83.7(b) to demonstrate that it comprises a distinct community at 
present. However, it need not provide evidence to demonstrate existence 
as a community historically.
    (3) The group meets the requirements of the criterion in 
Sec. 83.7(c) to demonstrate that political influence or authority is 
exercised within the group at present. Sufficient evidence to meet the 
criterion in Sec. 83.7(c) from the point of last Federal acknowledgment 
to the present may be provided by demonstration of substantially 
continuous historical identification, by authoritative, knowledgeable 
external sources, of leaders and/or a governing body who exercise 
political influence or authority, together with demonstration of one 
form of evidence listed in Sec. 83.7(c).
    (4) The group meets the requirements of the criteria in paragraphs 
83.7 (d) through (g).
    (5) If a petitioner which has demonstrated previous Federal 
acknowledgment cannot meet the requirements in paragraphs (d) (1) and 
(3), the petitioner may demonstrate alternatively that it meets the 
requirements of the criteria in Sec. 83.7 (a) through (c) from last 
Federal acknowledgment until the present.


Sec. 83.9  Notice of receipt of a petition.

    (a) Within 30 days after receiving a letter of intent, or a 
documented petition if a letter of intent has not previously been 
received and noticed, the Assistant Secretary shall acknowledge such 
receipt in writing and shall have published within 60 days in the 
Federal Register a notice of such receipt. This notice must include the 
name, location, and mailing address of the petitioner and such other 
information as will identify the entity submitting the letter of intent 
or documented petition and the date it was received. This notice shall 
also serve to announce the opportunity for interested parties and 
informed parties to submit factual or legal arguments in support of or 
in opposition to the petitioner's request for acknowledgment and/or to 
request to be kept informed of all general actions affecting the 
petition. The notice shall also indicate where a copy of the letter of 
intent and the documented petition may be examined.
    (b) The Assistant Secretary shall notify, in writing, the governor 
and attorney general of the state in which a petitioner is located. The 
Assistant Secretary shall also notify any recognized tribe and any 
other petitioner which appears to have a historical or present 
relationship with the petitioner or which may otherwise be considered 
to have a potential interest in the acknowledgment determination.
    (c) The Assistant Secretary shall also publish the notice of 
receipt of the letter of intent, or documented petition if a letter of 
intent has not been previously received, in a major newspaper or 
newspapers of general circulation in the town or city nearest to the 
petitioner. The notice will include all of the information in paragraph 
(a) of this section.


Sec. 83.10  Processing of the documented petition.

    (a) Upon receipt of a documented petition, the Assistant Secretary 
shall cause a review to be conducted to determine whether the 
petitioner is entitled to be acknowledged as an Indian tribe. The 
review shall include consideration of the documented petition and the 
factual statements contained therein. The Assistant Secretary may also 
initiate other research for any purpose relative to analyzing the 
documented petition and obtaining additional information about the 
petitioner's status. The Assistant Secretary may likewise consider any 
evidence which may be submitted by interested parties or informed 
parties.
    (b) Prior to active consideration of the documented petition, the 
Assistant Secretary shall conduct a preliminary review of the petition 
for purposes of technical assistance.
    (1) This technical assistance review does not constitute the 
Assistant Secretary's review to determine if the petitioner is entitled 
to be acknowledged as an Indian tribe. It is a preliminary review for 
the purpose of providing the petitioner an opportunity to supplement or 
revise the documented petition prior to active consideration. Insofar 
as possible, technical assistance reviews under this paragraph will be 
conducted in the order of receipt of documented petitions. However, 
technical assistance reviews will not have priority over active 
consideration of documented petitions.
    (2) After the technical assistance review, the Assistant Secretary 
shall notify the petitioner by letter of any obvious deficiencies or 
significant omissions apparent in the documented petition and provide 
the petitioner with an opportunity to withdraw the documented petition 
for further work or to submit additional information and/or 
clarification.
    (3) If a petitioner's documented petition claims previous Federal 
acknowledgment and/or includes evidence of previous Federal 
acknowledgment, the technical assistance review will also include a 
review to determine whether that evidence is sufficient to meet the 
requirements of previous Federal acknowledgment as defined in 
Sec. 83.1.
    (c) Petitioners have the option of responding in part or in full to 
the technical assistance review letter or of requesting, in writing, 
that the Assistant Secretary proceed with the active consideration of 
the documented petition using the materials already submitted.
    (1) If the petitioner requests that the materials submitted in 
response to the technical assistance review letter be again reviewed 
for adequacy, the Assistant Secretary will provide the additional 
review. However, this additional review will not be automatic and will 
be conducted only at the request of the petitioner.
    (2) If the assertion of previous Federal acknowledgment under 
Sec. 83.8 cannot be substantiated during the technical assistance 
review, the petitioner must respond by providing additional evidence. A 
petitioner claiming previous Federal acknowledgment who fails to 
respond to a technical assistance review letter under this paragraph, 
or whose response fails to establish the claim, shall have its 
documented petition considered on the same basis as documented 
petitions submitted by groups not claiming previous Federal 
acknowledgment. Petitioners that fail to demonstrate previous Federal 
acknowledgment after a review of materials submitted in response to the 
technical assistance review shall be so notified. Such petitioners may 
submit additional materials concerning previous acknowledgment during 
the course of active consideration.
    (d) The order of consideration of documented petitions shall be 
determined by the date of the Bureau's notification to the petitioner 
that it considers that the documented petition is ready to be placed on 
active consideration. The Assistant Secretary shall establish and 
maintain a numbered register of documented petitions which have been 
determined ready for active consideration. The Assistant Secretary 
shall also maintain a numbered register of letters of intent or 
incomplete petitions based on the original date of filing with the 
Bureau. In the event that two or more documented petitions are 
determined ready for active consideration on the same date, the 
register of letters of intent or incomplete petitions shall determine 
the order of consideration by the Assistant Secretary.
    (e) Prior to active consideration, the Assistant Secretary shall 
investigate any petitioner whose documented petition and response to 
the technical assistance review letter indicates that there is little 
or no evidence that establishes that the group can meet the mandatory 
criteria in paragraphs (e), (f) or (g) of Sec. 83.7.
    (1) If this review finds that the evidence clearly establishes that 
the group does not meet the mandatory criteria in paragraphs (e), (f) 
or (g) of Sec. 83.7, a full consideration of the documented petition 
under all seven of the mandatory criteria will not be undertaken 
pursuant to paragraph (a) of this section. Rather, the Assistant 
Secretary shall instead decline to acknowledge that the petitioner is 
an Indian tribe and publish a proposed finding to that effect in the 
Federal Register. The periods for receipt of comments on the proposed 
finding from petitioners, interested parties and informed parties, for 
consideration of comments received, and for publication of a final 
determination regarding the petitioner's status shall follow the 
timetables established in paragraphs (h) through (l) of this section.
    (2) If the review cannot clearly demonstrate that the group does 
not meet one or more of the mandatory criteria in paragraphs (e), (f) 
or (g) of Sec. 83.7, a full evaluation of the documented petition under 
all seven of the mandatory criteria shall be undertaken during active 
consideration of the documented petition pursuant to paragraph (g) of 
this section.
    (f) The petitioner and interested parties shall be notified when 
the documented petition comes under active consideration.
    (1) They shall also be provided with the name, office address, and 
telephone number of the staff member with primary administrative 
responsibility for the petition; the names of the researchers 
conducting the evaluation of the petition; and the name of their 
supervisor.
    (2) The petitioner shall be notified of any substantive comment on 
its petition received prior to the beginning of active consideration or 
during the preparation of the proposed finding, and shall be provided 
an opportunity to respond to such comments.
    (g) Once active consideration of the documented petition has begun, 
the Assistant Secretary shall continue the review and publish proposed 
findings and a final determination in the Federal Register pursuant to 
these regulations, notwithstanding any requests by the petitioner or 
interested parties to cease consideration. The Assistant Secretary has 
the discretion, however, to suspend active consideration of a 
documented petition, either conditionally or for a stated period of 
time, upon a showing to the petitioner that there are technical 
problems with the documented petition or administrative problems that 
temporarily preclude continuing active consideration. The Assistant 
Secretary shall also consider requests by petitioners for suspension of 
consideration and has the discretion to grant such requests for good 
cause. Upon resolution of the technical or administrative problems that 
are the basis for the suspension, the documented petition will have 
priority on the numbered register of documented petitions insofar as 
possible. The Assistant Secretary shall notify the petitioner and 
interested parties when active consideration of the documented petition 
is resumed. The timetables in succeeding paragraphs shall begin anew 
upon the resumption of active consideration.
    (h) Within one year after notifying the petitioner that active 
consideration of the documented petition has begun, the Assistant 
Secretary shall publish proposed findings in the Federal Register. The 
Assistant Secretary has the discretion to extend that period up to an 
additional 180 days. The petitioner and interested parties shall be 
notified of the time extension. In addition to the proposed findings, 
the Assistant Secretary shall prepare a report summarizing the 
evidence, reasoning, and analyses that are the basis for the proposed 
decision. Copies of the report shall be provided to the petitioner, 
interested parties, and informed parties and made available to others 
upon written request.
    (i) Upon publication of the proposed findings, the petitioner or 
any individual or organization wishing to challenge or support the 
proposed findings shall have 180 days to submit arguments and evidence 
to the Assistant Secretary to rebut or support the proposed finding. 
The period for comment on a proposed finding may be extended for up to 
an additional 180 days at the Assistant Secretary's discretion upon a 
finding of good cause. The petitioner and interested parties shall be 
notified of the time extension. Interested and informed parties who 
submit arguments and evidence to the Assistant Secretary must provide 
copies of their submissions to the petitioner.
    (j)(1) During the response period, the Assistant Secretary shall 
provide technical advice concerning the factual basis for the proposed 
finding, the reasoning used in preparing it, and suggestions regarding 
the preparation of materials in response to the proposed finding. The 
Assistant Secretary shall make available to the petitioner in a timely 
fashion any records used for the proposed finding not already held by 
the petitioner, to the extent allowable by Federal law.
    (2) In addition, the Assistant Secretary shall, if requested by the 
petitioner or any interested party, hold a formal meeting for the 
purpose of inquiring into the reasoning, analyses, and factual bases 
for the proposed finding. The proceedings of this meeting shall be on 
the record. The meeting record shall be available to any participating 
party and become part of the record considered by the Assistant 
Secretary in reaching a final determination.
    (k) The petitioner shall have a minimum of 60 days to respond to 
any submissions by interested and informed parties during the response 
period. This may be extended at the Assistant Secretary's discretion if 
warranted by the extent and nature of the comments. The petitioner and 
interested parties shall be notified by letter of any extension. No 
further comments from interested or informed parties will be accepted 
after the end of the regular response period.
    (l) At the end of the period for comment on a proposed finding, the 
Assistant Secretary shall consult with the petitioner and interested 
parties to determine an equitable timeframe for consideration of 
written arguments and evidence submitted during the response period. 
The petitioner and interested parties shall be notified of the date 
such consideration begins.
    (1) Unsolicited comments submitted after the close of the response 
period established in Sec. 83.10(i) and Sec. 83.10(k), will not be 
considered in preparation of a final determination. The Assistant 
Secretary has the discretion during the preparation of the proposed 
finding, however, to request additional explanations and information 
from the petitioner or from commenting parties to support or supplement 
their comments on a proposed finding. The Assistant Secretary may also 
conduct such additional research as is necessary to evaluate and 
supplement the record. In either case, the additional materials will 
become part of the petition record.
    (2) After consideration of the written arguments and evidence 
rebutting or supporting the proposed finding and the petitioner's 
response to the comments of interested parties and informed parties, 
the Assistant Secretary shall make a final determination regarding the 
petitioner's status. A summary of this determination shall be published 
in the Federal Register within 60 days from the date on which the 
consideration of the written arguments and evidence rebutting or 
supporting the proposed finding begins.
    (3) The Assistant Secretary has the discretion to extend the period 
for the preparation of a final determination if warranted by the extent 
and nature of evidence and arguments received during the response 
period. The petitioner and interested parties shall be notified of the 
time extension.
    (4) The determination will become effective 90 days from 
publication unless a request for reconsideration is filed pursuant to 
Sec. 83.11.
    (m) The Assistant Secretary shall acknowledge the existence of the 
petitioner as an Indian tribe when it is determined that the group 
satisfies all of the criteria in Sec. 83.7. The Assistant Secretary 
shall decline to acknowledge that a petitioner is an Indian tribe if it 
fails to satisfy any one of the criteria in Sec. 83.7.
    (n) If the Assistant Secretary declines to acknowledge that a 
petitioner is an Indian tribe, the petitioner shall be informed of 
alternatives, if any, to acknowledgment under these procedures. These 
alternatives may include other means through which the petitioning 
group may achieve the status of an acknowledged Indian tribe or through 
which any of its members may become eligible for services and benefits 
from the Department as Indians, or become members of an acknowledged 
Indian tribe.
    (o) The determination to decline to acknowledge that the petitioner 
is an Indian tribe shall be final for the Department.
    (p) A petitioner that has petitioned under this part or under the 
acknowledgment regulations previously effective and that has been 
denied Federal acknowledgment may not re-petition under this part. The 
term ``petitioner'' here includes previously denied petitioners that 
have reorganized or been renamed or that are wholly or primarily 
portions of groups that have previously been denied under these or 
previous acknowledgment regulations.


Sec. 83.11  Independent review, reconsideration and final action

    (a) (1) Upon publication of the Assistant Secretary's determination 
in the Federal Register, the petitioner or any interested party may 
file a request for reconsideration with the Interior Board of Indian 
Appeals. Petitioners which choose under Sec. 83.3(g) to be considered 
under previously effective acknowledgment regulations may nonetheless 
request reconsideration under this section.
    (2) A petitioner's or interested party's request for 
reconsideration must be received by the Board no later than 90 days 
after the date of publication of the Assistant Secretary's 
determination in the Federal Register. If no request for 
reconsideration has been received, the Assistant Secretary's decision 
shall be final for the Department 90 days after publication of the 
final determination in the Federal Register.
    (b) The petitioner's or interested party's request for 
reconsideration shall contain a detailed statement of the grounds for 
the request, and shall include any new evidence to be considered.
    (1) The detailed statement of grounds for reconsideration filed by 
a petitioner or interested parties shall be considered the appellant's 
opening brief provided for in 43 CFR 4.311(a).
    (2) The party or parties requesting the reconsideration shall mail 
copies of the request to the petitioner and all other interested 
parties.
    (c)(1) The Board shall dismiss a request for reconsideration that 
is not filed by the deadline specified in paragraph (a) of this 
section.
    (2) If a petitioner's or interested party's request for 
reconsideration is filed on time, the Board shall determine, within 120 
days after publication of the Assistant Secretary's final determination 
in the Federal Register, whether the request alleges any of the grounds 
in paragraph (d) of this section and shall notify the petitioner and 
interested parties of this determination.
    (d) The Board shall have the authority to review all requests for 
reconsideration that are timely and that allege any of the following:
    (1) That there is new evidence that could affect the determination; 
or
    (2) That a substantial portion of the evidence relied upon in the 
Assistant Secretary's determination was unreliable or was of little 
probative value; or
    (3) That petitioner's or the Bureau's research appears inadequate 
or incomplete in some material respect; or
    (4) That there are reasonable alternative interpretations, not 
previously considered, of the evidence used for the final 
determination, that would substantially affect the determination that 
the petitioner meets or does not meet one or more of the criteria in 
Sec. 83.7 (a) through (g).
    (e) The Board shall have administrative authority to review 
determinations of the Assistant Secretary made pursuant to 
Sec. 83.10(m) to the extent authorized by this section.
    (1) The regulations at 43 CFR 4.310-4.318 and 4.331-4.340 shall 
apply to proceedings before the Board except when they are inconsistent 
with these regulations.
    (2) The Board may establish such procedures as it deems appropriate 
to provide a full and fair evaluation of a request for reconsideration 
under this section to the extent they are not inconsistent with these 
regulations.
    (3) The Board, at its discretion, may request experts not 
associated with the Bureau, the petitioner, or interested parties to 
provide comments, recommendations, or technical advice concerning the 
determination, the administrative record, or materials filed by the 
petitioner or interested parties. The Board may also request, at its 
discretion, comments or technical assistance from the Assistant 
Secretary concerning the final determination or, pursuant to paragraph 
(e)(8) of this section, the record used for the determination.
    (4) Pursuant to 43 CFR 4.337(a), the Board may require, at its 
discretion, a hearing conducted by an administrative law judge of the 
Office of Hearings and Appeals if the Board determines that further 
inquiry is necessary to resolve a genuine issue of material fact or to 
otherwise augment the record before it concerning the grounds for 
reconsideration.
    (5) The detailed statement of grounds for reconsideration filed by 
a petitioner or interested parties pursuant to paragraph (b)(1) of this 
section shall be considered the appellant's opening brief provided for 
in 43 CFR 4.311(a).
    (6) An appellant's reply to an opposing party's answer brief, 
provided for in 43 CFR 4.311(b), shall not apply to proceedings under 
this section, except that a petitioner shall have the opportunity to 
reply to an answer brief filed by any party that opposes a petitioner's 
request for reconsideration.
    (7) The opportunity for reconsideration of a Board decision 
provided for in 43 CFR 4.315 shall not apply to proceedings under this 
section.
    (8) For purposes of review by the Board, the administrative record 
shall consist of all appropriate documents in the Branch of 
Acknowledgment and Research relevant to the determination involved in 
the request for reconsideration. The Assistant Secretary shall 
designate and transmit to the Board copies of critical documents 
central to the portions of the determination under a request for 
reconsideration. The Branch of Acknowledgment and Research shall retain 
custody of the remainder of the administrative record, to which the 
Board shall have unrestricted access.
    (9) The Board shall affirm the Assistant Secretary's determination 
if the Board finds that the petitioner or interested party has failed 
to establish, by a preponderance of the evidence, at least one of the 
grounds under paragraph (d)(1-4) of this section.
    (10) The Board shall vacate the Assistant Secretary's determination 
and remand it to the Assistant Secretary for further work and 
reconsideration if the Board finds that the petitioner or an interested 
party has established, by a preponderance of the evidence, one or more 
of the grounds under paragraph (d)(1-4) of this section.
    (f)(1) The Board, in addition to making its determination to affirm 
or remand, shall describe in its decision any grounds for 
reconsideration other than those in paragraphs (d)(1-4) of this section 
alleged by a petitioner's or interested party's request for 
reconsideration.
    (2) If the Board affirms the Assistant Secretary's decision under 
Sec. 83.11(e)(9) but finds that the petitioner or interested parties 
have alleged other grounds for reconsideration, the Board shall send 
the requests for reconsideration to the Secretary. The Secretary shall 
have the discretion to request that the Assistant Secretary reconsider 
the final determination on those grounds.
    (3) The Secretary, in reviewing the Assistant Secretary's decision, 
may review any information available, whether formally part of the 
record or not. Where the Secretary's review relies upon information 
that is not formally part of the record, the Secretary shall insert the 
information relied upon into the record, together with an 
identification of its source and nature.
    (4) Where the Board has sent the Secretary a request for 
reconsideration under paragraph (f)(2), the petitioner and interested 
parties shall have 30 days from receiving notice of the Board's 
decision to submit comments to the Secretary. Where materials are 
submitted to the Secretary opposing a petitioner's request for 
reconsideration, the interested party shall provide copies to the 
petitioner and the petitioner shall have 15 days from their receipt of 
the information to file a response with the Secretary.
    (5) The Secretary shall make a determination whether to request a 
reconsideration of the Assistant Secretary's determination within 60 
days of receipt of all comments and shall notify all parties of the 
decision.
    (g) (1) The Assistant Secretary shall issue a reconsidered 
determination within 120 days of receipt of the Board's decision to 
remand a determination or the Secretary's request for reconsideration.
    (2) The Assistant Secretary's reconsideration shall address all 
grounds determined to be valid grounds for reconsideration in a remand 
by the Board, other grounds described by the Board pursuant to 
paragraph (f)(1), and all grounds specified in any Secretarial request. 
The Assistant Secretary's reconsideration may address any issues and 
evidence consistent with the Board's decision or the Secretary's 
request.
    (h) (1) If the Board finds that no petitioner's or interested 
party's request for reconsideration is timely, the Assistant 
Secretary's determination shall become effective and final for the 
Department 120 days from the publication of the final determination in 
the Federal Register.
    (2) If the Secretary declines to request reconsideration under 
paragraph (f)(2) of this section, the Assistant Secretary's decision 
shall become effective and final for the Department as of the date of 
notification to all parties of the Secretary's decision.
    (3) If a determination is reconsidered by the Assistant Secretary 
because of action by the Board remanding a decision or because the 
Secretary has requested reconsideration, the reconsidered determination 
shall be final and effective upon publication of the notice of this 
reconsidered determination in the Federal Register.


Sec. 83.12  Implementation of decisions.

    (a) Upon final determination that the petitioner exists as an 
Indian tribe, it shall be considered eligible for the services and 
benefits from the Federal government that are available to other 
federally recognized tribes. The newly acknowledged tribe shall be 
considered a historic tribe and shall be entitled to the privileges and 
immunities available to other federally recognized historic tribes by 
virtue of their government-to-government relationship with the United 
States. It shall also have the responsibilities and obligations of such 
tribes. Newly acknowledged Indian tribes shall likewise be subject to 
the same authority of Congress and the United States as are other 
federally acknowledged tribes.
    (b) Upon acknowledgment as an Indian tribe, the list of members 
submitted as part of the petitioners documented petition shall be the 
tribe's complete base roll for purposes of Federal funding and other 
administrative purposes. For Bureau purposes, any additions made to the 
roll, other than individuals who are descendants of those on the roll 
and who meet the tribe's membership criteria, shall be limited to those 
meeting the requirements of Sec. 83.7(e) and maintaining significant 
social and political ties with the tribe (i.e., maintaining the same 
relationship with the tribe as those on the list submitted with the 
group's documented petition).
    (c) While the newly acknowledged tribe shall be considered eligible 
for benefits and services available to federally recognized tribes 
because of their status as Indian tribes, acknowledgment of tribal 
existence shall not create immediate access to existing programs. The 
tribe may participate in existing programs after it meets the specific 
program requirements, if any, and upon appropriation of funds by 
Congress. Requests for appropriations shall follow a determination of 
the needs of the newly acknowledged tribe.
    (d) Within six months after acknowledgment, the appropriate Area 
Office shall consult with the newly acknowledged tribe and develop, in 
cooperation with the tribe, a determination of needs and a recommended 
budget. These shall be forwarded to the Assistant Secretary. The 
recommended budget will then be considered along with other 
recommendations by the Assistant Secretary in the usual budget request 
process.


Sec. 83.13  Information collection.

    (a) The collections of information contained in Sec. 83.7 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1076-0104. The information will be 
used to establish historical existence as a tribe, verify family 
relationships and the group's claim that its members are Indian and 
descend from a historical tribe or tribes which combined, that members 
are not substantially enrolled in other Indian tribes, and that they 
have not individually or as a group been terminated or otherwise 
forbidden the Federal relationship. Response is required to obtain a 
benefit in accordance with 25 U.S.C. 2.
    (b) Public reporting burden for this information is estimated to 
average 1,968 hours per petition, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this collection of 
information, including suggestions for reducing the burden, to both the 
Information Collection Clearance Officer, Bureau of Indian Affairs, 
Mail Stop 336-SIB, 1849 C Street, NW., Washington, DC 20240; and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington, DC 20503.

    Dated: December 28, 1993.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 94-3934 Filed 2-24-94; 8:45 am]
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